State v. Bradley

• Decision Date: 23 May 1888
• Parties: STATE OF MISSOURI, Respondent, v. THOMAS G. BRADLEY, Appellant.
• Court: Kansas Court of Appeals

31 Mo.App. 308

STATE OF MISSOURI, Respondent, v. THOMAS G. BRADLEY, Appellant.

Court of Appeals of Missouri, Kansas City.

May 23, 1888

Appeal from Johnson Criminal Court, HON. JOHN E. RYLAND, Judge.

Affirmed.

The case is stated in the opinion.

SAMUEL P. SPARKS, for the appellant.

I. This proceeding was bottomed on the following section of the Revised Statutes of Missouri: " If any person shall wilfully or knowingly obstruct any public road * * * he or they shall each pay a fine of not less than twenty dollars to be recovered by indictment or information before a justice of the peace." Rev. Stat., 1879, sec. 6964; Laws 1883 sec. 33, p. 165; Laws 1887, sec. 36, p. 254. (a ) It is plain that the statute did not provide for a proceeding by information in the criminal court, but only before a justice of the peace. (b ) This being a statutory offence, the proceedings must be in the tribunal prescribed by the statute, and the criminal court could only try defendant upon an indictment; and the attempted conviction upon an information was a nullity, and this appearing upon the face of the proceedings, the criminal court had no jurisdiction of the offence, and the judgment should be reversed and the defendant discharged. Journey v State, 1 Mo. 428; Corwin v. State, 4 Mo. 609; State v. Huffsmidt, 47 Mo. 72; Ex parte Slater, 72 Mo. 102. (c ) Want of jurisdiction over the subject-matter can be taken advantage of at any time. Henderson v. Henderson, 55 Mo. 534; Graves v. McHugh, 58 Mo. 499.

II. All the testimony conclusively established that the acts constituting the alleged offence were committed more than a year prior to the filing of the information, and that the offence was barred. Rev. Stat., sec. 1705.

III. The description of the alleged public road was unintelligible, and the road could not be identified by the description. A criminal charge is bad which fails to inform defendant of the nature of the offence. Const. Mo., art. 2 sec. 22; State v. Gabriel, 88 Mo. 631.

IV. Before the highway could have been acquired by user alone, it was essential that such use should have been continuous and uninterrupted for the requisite period of time, as declared in defendant's instruction. This ingredient was ignored in the instructions given for the state, which were in conflict with defendant's instruction. State v. Culver, 65 Mo. 607. The owner cannot be deprived of the use of his land by user in the public for a highway short of the period of twenty years, except when the road has been ordered opened by a competent authority, and been used by the public continuously and uninterruptedly for the full period of ten years. State v. Culver, supra; Laws 1883, sec. 58, p. 170; Laws 1887, sec. 57, p. 257.

V. The penalty of this statute is only denounced against obstructors of roads legally established by or ordered opened by some competent authority.

VI. The definition of the words " wilfully" and " knowingly," contained in the eighth instruction for the state, was erroneous. The word " wilfully," as employed in this statute, means legal malice or evil intent, the absence of reasonable ground for belief that the act charged was unlawful, not merely intentional, as declared by this instruction. In penal and criminal statutes, it means that the act was done wrongfully. Schubert v. State, 16 Tex.App. 648; Trice v. State, 17 Tex.App. 43; Brinkoeter v. State, 14 Tex.App. 67; Thomas v. State, 14 Tex.App. 200; State v. Preston, 34 Wis. 675; 1 Bish. Crim. Law, sec. 421; State v. Abram, 10 Ala. 928; McManus v. State, 36 Ala. 285; Commonwealth v. Kneeland, 20 Pick. 206, 220; Commonwealth v. Bradford, 9 Met. 268. The definition of the word " knowingly," in the same instruction, was erroneous and misleading, and would authorize a conviction, though the defendant was actually ignorant of the existence of the road.

VII. The fifth instruction for the state made the offence a continuing one. There was no continuando charged in the information. Though it were a continuing offence, without this the instruction was erroneous. 1 Bish. Crim. Proc., secs. 393, 394, 395, 396.

VIII. The seventh instruction for the state was vicious, in telling the jury that, because the defendant had testified in his own behalf, they should consider this fact in determining his credibility.

IX. The fourth instruction of defendant, refused by the court, correctly declared the law.

X. The court erred in refusing the fifth instruction of defendant; by so doing, it declares that it was not necessary that the indictment read in evidence should be for the identical offence charged in the information to suspend the running of the statute during its pendency.

XI. The court erred in admitting oral testimony tending to show the existence of a public road, and to make out the offence, in view of instruction numbered two, given for defendant, declaring a legally established public road on the line, just as defendant contends, and upon the faith of which he erected his fence twenty feet north of that line.

B. G. BOONE, Attorney General, R. M. ROBERTSON, Prosecuting Attorney, and W. W. WOOD, for the respondent.

I. The section of the road law, under which the information in this case was filed, was first enacted in 1877. Acts 1877, p. 401. When a former provision is contained in a revised law, it operates only as a continuance of its existence, and not as an original act. Cape Girardeau v. Riley, 56 Mo. 424; State ex rel. v. Heidorn, 74 Mo. 410. The law as to jurisdiction was enacted in 1879, and being the later act repeals the above section of the road law to the extent that it conflicts with the same. Rev. Stat., 1879, sec. 1761. A fine, penalty, or forfeiture may be recovered by information or indictment, notwithstanding another, or different remedy for the recovery of the same may be specified in the law imposing the fine, penalty, or forfeiture. Rev. Stat., 1879, sec. 1674. An information in a road obstruction case, filed after the law of 1877 (which is the same on that point as the road law of 1883) went into effect, held good. State v. McCrary, 74 Mo. 303.

II. We think it clear from the face of the indictment offered in evidence that the road described therein was the same as the road described in the information. The proof offered by the state furnished abundant evidence from which the jury might have found that the offence charged in the indictment and that charged in the information, were one and the same; and that being the case, the statute of limitations did not run. Rev. Stat., sec. 1707; State v. Primm, 61 Mo. 166; State v. Owens, 78 Mo. 376; State v. English, 2 Mo. 182.

III. The instructions given for defendant and those given for the state are not in conflict, nor inconsistent with each other. Taken together, the jury could not have been misled by them.

IV. As to the point that use for twenty years is necessary, " except when the road has been ordered by competent authority," etc., we have only to cite the following: Rev. Stat., 1879, sec. 6981; State v. Walters, 69 Mo. 463; State v. Wells, 70 Mo. 635; State v. Proctor, 90 Mo. 334.

V. In answer to defendant's array of " foreign" authorities on the definition of the word " wilfully," we cite the following Missouri cases, to which many more might be added. State v. Talbott, 73 Mo. 350; State v. Thomas, 78 Mo. 327; State v. Brooks, 92 Mo. 553. The definition of the word " knowingly," in this class of cases, is fully substantiated by State v. Wells, 70 Mo. 635.

VI. If the information had charged the commission of the offence on a date more than one year before the filing of the information, undoubtedly it would have been necessary to allege a continuando, but as the offence was charged to have been committed within a year, it was unnecessary. State v. Gilbert, 73 Mo. 20; Slate v. Meyers, 68 Mo. 266; State v. English, 2 Mo. 182.

VII. The fourth instruction for defendant was properly refused. " It makes not the slightest difference in this case whether defendant had any knowledge of the fact that the road was legally established or not." State v. Wells, 70 Mo. 635; State v. Julian, 25 Mo.App. 137. The fifth instruction was properly refused. It ignored the evidence tending to show that the offence was a continuous one. State v. Gilbert, 73 Mo. 20.

VIII. Appellant's eleventh point is fully answered by the authorities cited under our fourth paragraph.

SAM'L. P. SPARKS, in reply.

I. The contention of respondent that section 1761 repeals by implication section 6964 is without foundation. The former expressly provides: " All misdemeanors shall be prosecuted by indictment or by information in the court having jurisdiction thereof." How can a repeal of the special jurisdiction confined to justices of the peace of this sort of action be predicated of this language? Repeals by implication are never allowed unless the two acts are so inconsistent that they are repugnant--wholly irreconcilable--so inconsistent as not to stand together. Glasgow v. Lindell, 50 Mo. 60; McVey v. McVey, 51 Mo. 406; Railroad v. Cass Co., 53 Mo. 17; State v. Debar, 53 Mo. 395; State v. Jaeger, 63 Mo. 403.

II. Section 1674 is a provision wholly concerning the remedy; does not in the least affect the special jurisdiction provided for in section 1761; is not in pari materia. This section (striking out the words " or information" interpolated in the revision of 1879) has been on the statute books since the revision of 1855. Rev. Stat., 1855, sec. 33.

III. The case of State v. McCrary, 74 Mo. 303, cited as an authority under the proposition that the criminal court had concurrent jurisdiction with justices of the peace of this offence by information, is not in point--the offence in that case was charged to have been committed on May 1, 1877 only...