State v. Buente

• Decision Date: 17 February 1914
• Citation: 256 Mo. 227,165 S.W. 340
• Parties: STATE v. BUENTE.
• Court: Missouri Supreme Court

165 S.W. 340

256 Mo. 227

STATE v. BUENTE.

Supreme Court of Missouri, Division No. 2.

February 17, 1914.

Rehearing Denied March 24, 1914.

1. CRIMINAL LAW (§ 162)—FORMER JEOPARDY—VALIDITY OF STATUTES.

Laws 1869, p. 198, § 21, provides that if, in any proceeding in the St. Louis court of criminal correction, it appears that defendant has been guilty of felony, the court shall dismiss as to the lesser offense, and commit or bail defendant to answer to an indictment in the St. Louis criminal court, and if, upon trial in the latter court, defendant is proved guilty of a misdemeanor only, the case shall not be dismissed, but shall be proceeded on to judgment in the criminal court as if defendant had been tried for misdemeanor in the court of criminal correction. Held, that the statute does not violate Const. art. 2, § 23, providing that no person, "after being once acquitted by a jury," shall be again, for the same offense, put in jeopardy of life or liberty.

2. CRIMINAL LAW (§ 162)—FEDERAL CONSTITUTION — AMENDMENTS — APPLICATION TO STATES.

The fifth amendment to the federal Constitution, providing that no person shall be subject, for the same offense, to be twice put in jeopardy of life or limb, etc., does not apply to the states.

3. CRIMINAL LAW (§ 173)—FORMER "JEOPARDY."

Under a constitutional provision which merely provides that no person shall be twice put in jeopardy of life or limb for the same offense, where accused is to be tried upon a valid indictment before a legal jury in a court having jurisdiction, jeopardy attaches upon the swearing of the panel.

4. CONSTITUTIONAL LAW (§ 48)—VALIDITY OF STATUTE—CONSTRUCTION.

The courts should not declare a statute unconstitutional unless they find it to be so beyond a reasonable doubt.

5. CRIMINAL LAW (§ 1120)—APPEAL—ERROR NOT SHOWN.

A conviction will not be reversed for excluding the evidence of a witness, where the appellate record does not show the purpose for which the evidence was offered, but only shows that he was a physician and had been called by the person cut by accused to treat him for the wound; the record not showing that accused was injured by excluding the testimony.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Theodore Buente was convicted of assault, and appeals. Affirmed.

Defendant was prosecuted in the circuit court of the city of St. Louis upon an information charging him with assault with intent to kill, for that it was averred he had stabbed one Rosenthal with a knife. Defendant upon his trial, was found guilty by a jury of common assault only, and his punishment was assessed at six months' imprisonment in the city jail and a fine of $100. The case is here upon a constitutional question raised by the defendant in the manner below to be pointed out.

Defendant in a proper and timely way filed in the court nisi a plea in bar in which he averred former jeopardy and prayed that for reason thereof he should be finally discharged. In substance his plea of former jeopardy was based upon the fact that theretofore, upon a proper information filed in the St. Louis court of criminal correction by an associate prosecuting attorney of the city of St. Louis, he had been charged with assault and battery upon the said Rosenthal; that he pleaded not guilty to the latter charge, and was thereupon, for the misdemeanor aforesaid, placed upon his trial in the court of criminal correction before a jury duly impaneled and sworn and charged with his deliverance; that all of the testimony on the part of the state in the trial of the defendant for the misdemeanor aforesaid was fully heard by the court; and that thereupon, over the objections and against the protest of defendant, the judge of the court of criminal correction discharged the jury and made an order that defendant be held in bail to the grand jury to answer the charge of assault with intent to kill the said Rosenthal. Further it was averred that the two charges were identical in that they were based upon identical facts and occurrences. Other facts were set out in the plea in bar with which we need not burden this statement. Suffice it to say that, in our view upon the question of form and contents, the plea in bar was good. The state in the court nisi interposed a demurrer to the plea in bar, for that it did not charge facts sufficient to constitute a bar against the trial of defendant. This demurrer was sustained upon the point of law involved in the case, as raised by the demurrer.

Defendant in his plea in bar attacked the constitutionality of section 4902, R. S. 1909, but for the reasons hereinafter stated this question falls out of the case. He also urged that the facts which he averred, and which the demurrer in law admits, of themselves made out an affirmative showing that he had been twice put in jeopardy of life or liberty for the same offense, in violation of the provisions of section 23, art. 2, of the Constitution of Missouri. It is upon this constitutional question that we obtain jurisdiction.

Touching the facts shown upon the trial, we may say that the testimony was conflicting. Upon the facts occurring at the immediate moment of the stabbing of Rosenthal by defendant, there were no eyewitnesses, save and except Rosenthal and defendant himself. Prior to this stabbing there had been a saloon brawl between Rosenthal and defendant, in which, from the contradictory testimony, it is difficult to say who was the aggressor, though Rosenthal seems to have been the victor. After this encounter was over, the defendant left the saloon by a rear door, and Rosenthal purchased a bottle of beer at the bar. Rosenthal seems only to have drunk a portion of this beer, when he also left the saloon by the same door out of which defendant had gone, for the purpose, however, as he avers, of going to a toilet room. In a dark corridor or alleyway back of the saloon and leading to and near the toilet room, Rosenthal was attacked by defendant with a knife and cut twice, once upon the thumb and once in the left side, at about the seventh rib. The stab wound in the side was somewhat serious, and though it was prevented, through having struck the rib, from entering the cavity, it was of such seriousness as to entail upon Rosenthal some five weeks' illness and to necessitate his remaining in a hospital for about a week.

Defendant urged self-defense, and, while admitting that he had stabbed Rosenthal, he averred that he did so while Rosenthal was attacking him.

There is no point made as to the sufficiency of the evidence, which, after all, upon the contradictions shown by the record, was for the jury and is not for us. Such other facts as may arise in the case and become necessary to be stated in order to make clear the questions of law involved will be set out in the opinion.

Kurt Von Reppert, of St. Louis, for appellant. John T. Barker, Atty. Gen., and Thomas J. Higgs, Asst. Atty. Gen., for the State.

FARIS, J. (after stating the facts as above).

I. The most serious point in this case, and that which is most strenuously urged upon us, is that of former jeopardy, which learned counsel for defendant insistently urges accrued to the appellant when the jury was sworn to try him in the court of criminal correction upon the charge of assault and battery. It is urged that the fact that no verdict was rendered by the jury in that court, but that the trial was stopped by the judge thereof, as soon as he perceived, as he found and believed, that the defendant ought to have been put upon his trial for a higher offense, does not change the legal situation.

The state relies upon a statute which it is conceded applies to the facts before us. This statute is as follows: "If, upon the trial of any person for any misdemeanor it shall appear that the facts given in evidence amount in law, to a felony, such person shall not, by reason thereof, be entitled to be acquitted of such misdemeanor; and no person tried for such misdemeanor shall be liable to be afterward prosecuted for felony on the same facts, unless the court before which such trial may be had shall think fit, in its discretion, to discharge the jury from giving any verdict upon such trial, and to direct such person to be indicted for felony, in which case such person may be dealt with in all respects as if he had not been put upon his trial for such misdemeanor." Section 4902, R. S. 1909. But it is contended that, while the section set out does apply to all and every of the facts in the instant case, that this section is unconstitutional. That it is violative of the fifth amendment to the Constitution of the United States and of section 23 of article 2 of the Constitution of Missouri.

The St. Louis court of criminal correction, wherein the prosecution of defendant upon the information charging him with assault and battery was begun, and partly heard, to a stage, however, short of a verdict or judgment, has jurisdiction to hold preliminary hearings in felony cases just as and to a like extent as this power is given by statute to justices of the peace out in the state. Section 7, p. 195, Laws 1869. Likewise such court has jurisdiction concurrently with justices of the peace to try misdemeanor cases. Section 13, p. 196, Laws 1869.

Learned counsel for defendant devotes some considerable part of his brief and no mean quantum of learning in an effort to prove that one reason for the constitutional invalidity of section 4902, supra, is that it vests in the justice of the peace or court trying the misdemeanor case a discretion to toll the constitutional guaranty against being put twice in jeopardy, at the will, whim, or caprice of the justice of the peace or court. It may be that such a criticism is of itself a serious danger to the constitutional life of section 4902. But, be that as it may be, touching this phase we are not compelled to pass and do not pass, for the reason that learned counsel has inadvertently overlooked a section in the...