State v. Bennett

• Decision Date: 15 December 1890
• Parties: The State v. Bennett, Appellant
• Court: Missouri Supreme Court

14 S.W. 865

102 Mo. 356

The State v. Bennett, Appellant

Supreme Court of Missouri

December 15, 1890

Appeal from St. Louis Court of Criminal Correction. Thos. B. Harvey Esq., Special Judge.

This prosecution began in the St. Louis court of criminal correction.

The amended information, on which the case was tried, reads as follows:

"State of Missouri,

)

)

ss.

"City of St. Louis.

)

"In the St. Louis court of criminal correction, St. Louis, March 26, 1886.

"State of Missouri, Plaintiff,

)

Charged with acting

v.

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as a private detective

"Charles Bennett, Defendant.

)

without a license.

"Bernard Dierkes, assistant prosecuting attorney of the St. Louis court of criminal correction, now here in court, on behalf of the state of Missouri, by leave of court first had and obtained, amended information makes as follows: That Charles Bennett, in the city of St. Louis and state of Missouri, on the twenty-sixth day of February, 1886, and on divers other days and times prior thereto between said date and the twenty-sixth day of March, A. D. 1885, did then and there wilfully and unlawfully act as a private detective without having a license so to do from the president or acting president of the board of police commissioners of the city of St. Louis, and did at the place aforesaid and on the days and times aforesaid between the dates aforesaid hold himself out to the public as a private detective and did enter upon and exercise and continue the exercise and practice of the business, avocation or profession of a private detective, and did for others at the instance, request and employment of J A. Gilliam, J. A. Dittrick, Sarah Dittrick, Gisela Noland Charles Napton, Thos. Furlong and divers others whose names are unknown act as a private detective in various instances within the said city of St. Louis without having a license therefor from the president or acting president of the board of police commissioners of the city of St. Louis, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.

"[Signed] Bernard Dierkes,

"Assistant Prosecuting Attorney of St. Louis Court of Criminal Correction.

"State of Missouri,

)

)

ss.

"City of St. Louis.

)

"Chas T. Noland, being duly sworn, upon his oath says that the facts stated in the above information are true, according to his best knowledge and belief.

"[Signed] Chas. T. Noland.

"Sworn to and subscribed before me, this twenty-sixth day of March, 1886.

"Phillipp H. Zepp,

"Clerk of the St. Louis Court of Criminal Correction.

"[Signed] W. L. Fitzgerald,

"Deputy Clerk."

A motion was made by defendant to quash the information but it was overruled by the court and the exception saved. It was based on grounds that will be referred to in the opinion.

The evidence need not be set forth at length further than it appears in the opinion. At its close the court gave, at the instance of the state, the following instructions, viz.:

"The court instructs the jury that, if they believe and find from the evidence that, within the time mentioned in the information in this case and within one year prior to the filing of the same, the defendant, Charles Bennett, did in the city of St. Louis and state of Missouri act and serve as a private detective and so advertise, publish and hold himself out to the public as being engaged in such capacity of private detective, he did all this without having any written license from the president or acting president of the police commissioners of said city of St. Louis, the jury will convict the defendant of having acted as a private detective without license as charged in the information."

"If the jury convict the defendant they will assess his punishment at imprisonment in the city jail not exceeding six months, or by a fine not exceeding $ 200, or by both such fine and imprisonment."

"In contemplation of law, the acts, services and other things that may be done by one in the capacity of private detective must be done at the instance and employment of others, that is to say that detective work, which he may do in his personal matters, do not tend to prove him a detective within the meaning of the law."

"The court further instructs that before the jury can convict they must be convinced from the evidence beyond a reasonable doubt that the defendant is guilty; and by the term 'convinced beyond a reasonable doubt' is meant 'convinced to a moral certainty;' but the doubt here referred to must not be a mere conjecture or possibility of innocence but a substantial doubt growing out of the evidence."

The court also refused the following instruction among others asked by defendant:

"3. The jury are instructed that a person holding himself out as a detective does not come within the law and they cannot convict the defendant unless they believe from the evidence beyond a reasonable doubt that he acted as private detective within the city of St. Louis within the time specified in the information."

The jury convicted defendant, and after motions for a new trial and in arrest he appealed here on the ground that constitutional questions were involved, the charge being only for a misdemeanor.

In the motion in arrest the point was made that the information was not properly verified.

Reversed and remanded.

John A. Gilliam for appellant.

The information purports to be ex officio. It, therefore, required to be verified by the officer, and it was not so verified. R. S. 1879, sec. 1762. Verification by Noland "to the best of his knowledge and belief" is insufficient. State v. Hayward, 83 Mo. 304; Bridgeford v. Steamboat, 6 Mo. 356; People v. Becker, 20 N.Y. 354; Election Cases, 7 Phila. 41; 65 Pa. St. 20, 31; State v. Fitzporter, 17 Mo.App. 273; State v Bach, 25 Mo.App. 554. The information could not be amended after trial. R. S. 1879, sec. 1766; State v. Gregory, 38 Mo. 501; State v. Smith, 42 Mo. 550. Such has always been the practice of this court. State v. Russell, 88 Mo. 648; State v. Hayward, 83 Mo. 304; State v. Kelm, 79 Mo. 515; State v. Crooker, 95 Mo. 389; State v. Rochford, 52 Mo. 199; State v. Horn, 93 Mo. 190; State v. McChesney, 90 Mo. 120. In Connecticut, amendment was refused after statute of limitation had run. State v. Rowley, 12 Conn. 101. In Kentucky, enlarging charges were not permitted. Commonwealth v. Rodes, 1 Dana, 595. In Virginia, where offense as charged did not amount to a misdemeanor, amendment was refused. Commonwealth v. Williamson, 4 Gratt. 554. In Missouri no amendment is permissible after trial. State v. Russell, 88 Mo. 648. This court has at least four times, exclusive of this case, decided that there must be uniformity of proceeding in criminal cases in this state, and that a general law on such a subject controls a special or local law. State v. Hayward, 83 Mo. 299; State ex rel. v. Hoblitzelle, 85 Mo. 64; State v. Dolan, 93 Mo. 467; State v. Shea, 95 Mo. 85. And in the case of State ex rel. v. Francis, 95 Mo. 44, Judges Norton and Black gave separate opinions sustaining that position.

B. G. Boone, Attorney General, for the State.

(1) The information is sufficient. It charges the offense by its legal designation according to the terms used in the statute. State v. Davis, 70 Mo. 467. Where the statute so individuates the offense that offenders have proper notice from the mere adoption of the statutory terms in the information, of what they are charged with no more is necessary. 2 R. S., sec. 35, p. 1536; Whar. Cr. Pl. and Pr., sec. 220. (2) An information by a private person, verified according to his best knowledge and belief, is sufficient under the special law applicable to the St. Louis court of criminal correction. 2 R. S., sec. 19, p. 1514; State v. Fitzporter, 17 Mo.App. 273; State v. Bach, 25 Mo.App. 554. (3) Appellate courts will not reverse on account of lack of evidence unless there is absolutely no evidence on which to base the verdict. State v. Hert, 89 Mo. 590. Besides, it appears from the record, and even from the testimony copied into appellant's abstract and brief that there was ample evidence on which to base a conviction. (4) The fact that Bennett (appellant) had a sign to advertise his business, and advertised otherwise was proper evidence to show what his vocation was at the time he was charged with acting as a private detective. Abbot's Trial Evidence, p. 774; Com. v. Madden, 1 Gray, 486; State v. Wilson, 5 R. I. 291. (5) The law authorizing the police commissioners of the city of St. Louis to license private detectives (2 R. S., sec. 35, art. 6, chap. 7, p. 1536) is not invalid. It is regularly incorporated into the body of the laws specially applicable to the city of St. Louis, and is not inconsistent with the scheme and charter. Const. of Mo., sec. 20, art. 9.

Barclay J. Ray, C. J., and Black, J., concurring in this opinion. Brace, J., dissenting.

OPINION

Barclay, J.

-- The question for first consideration is the constitutional one upon which the case has been brought to this court.

The prosecution is founded on the following statute, viz.: "Sec. 2. The police commissioners of the city of St. Louis shall have power to regulate and license all private watchmen, private detectives and private policemen, serving or acting as such in the city or county of St. Louis, and no person shall act as such private watchman, private detective, or private policemen in said city or county without first having obtained the written license of the president or acting president of said police commissioners of the city of St. Louis, under pain of being guilty of a misdemeanor."

That section is part of an act approved February 17, 1875 (Acts p. 337), with the following title, viz.: "An act amendatory of an act entitled 'An act...