State v. Burgdoerfer

• Decision Date: 16 November 1891
• Citation: 107 Mo. 1,17 S.W. 646
• Parties: STATE v. BURGDOERFER.
• Court: Missouri Supreme Court

17 S.W. 646

107 Mo. 1

STATE v. BURGDOERFER.

Supreme Court of Missouri, Division No. 2.

November 16, 1891.

WRITS OF ERROR — IN CRIMINAL CASES — CONSTITUTIONAL LAW — TITLES OF ACTS.

1. 2 Rev. St. 1889, p. 2156, § 26, provides for writs of error, on any final judgment of the St. Louis court of criminal correction, from the supreme court, in like manner as to the St. Louis criminal court, which by page 2150, § 6, may be prosecuted directly to the supreme court, as in criminal cases in the circuit court. Section 4303, Rev. St., provides that the law applicable to the circuit court shall also be applicable to any other court of record exercising criminal jurisdiction. Section 4290 provides that, when an indictment is quashed on demurrer, the state may appeal. Section 4292 provides that, if no appeal be taken by the state, a writ of error may be prosecuted in the supreme court. Held, where an indictment in the St. Louis court of criminal correction was quashed on the ground that the law under which it was drawn was unconstitutional, that such decision might be reviewed on a writ of error on behalf of the state.

2. Act April 1, 1891, (Sess. Acts, p. 122,) entitled "An act to prohibit book-making and pool-selling," provides that every one shall be guilty of a misdemeanor who keeps rooms for book-making or pool-selling upon the results of any trial or contest of skill, speed, or power of endurance, which is to take place beyond the limits of the state; or who makes books or sells pools on such events, or who makes books or

sells pools on the result of any political nomination, appointment, or election, wherever made or held, or who makes books with or sells pools to minors on such events. Held, that the act is not unconstitutional, as containing more than one subject, which is not clearly expressed in its title.

3. Since the act is uniform in its application to all persons alike who come within its provisions, it is not in violation of Const. U. S. amend. 14.

4. The prohibition of book-making and pool-selling is within the police power of the state.

Error to St. Louis criminal court; NAT. C. CLAIBORNE, Judge. Reversed and remanded.

Indictment of Frederick C. Burgdoerfer for book-making and pool-selling. On motion of defendant, the indictment was quashed, on the ground that the law under which it was drawn was unconstitutional, and the state assigns error.

John M. Wood, Atty. Gen., Bernard Dierkes, Pros. Atty., Charles P. & John D. Johnson, Thomas B. Harvey, Valle Reyburn, and Charles T. Noland, for the State. Chester H. Krum, for defendant in error.

THOMAS, J.

The assistant prosecuting attorney of the St. Louis court of criminal correction filed an information in that court on the 26th day of June, 1891, by which defendant was charged with keeping a pool-room and registering bets, in violation of the act of the general assembly of this state approved April 1, 1891, entitled "An act to prohibit book-making and pool-selling." Sess. Acts 1891, p. 122. Defendant, being taken before the court on proper process, filed a motion to quash the information upon the grounds — First, because the act upon which the information is based is unconstitutional, in that it violates section 28 of article 4 of the constitution of Missouri; second, because the act is unconstitutional, in that it violates section 4 of the bill of rights of the constitution of Missouri, and is against the law of the land. The motion to quash was sustained by the court on the ground first above indicated, and the state sued out the present writ of error. Defendant filed a motion in this court to dismiss the writ of error on the following grounds: (1) That, under the statute creating the court of criminal correction of the city of St. Louis, a writ of error will not lie in behalf of the state to review any judgment against the state in any case cognizable by said court of criminal correction. (2) That under the Code of Criminal Procedure a writ of error will not lie in behalf of the state to review a judgment against the state rendered upon a motion to quash an indictment or information, except where, upon such motion, the indictment or information has been held to be insufficient in substance or in form. (3) That the motion to quash preserved in the record and sustained by the court below was not based upon any insufficiency of the information in substance or in form, but solely upon the ground of the unconstitutionality of the law under which said information was made, and the judgment of the court below, in quashing the information, was entered, not because of any insufficiency in form or substance of said information, but because of the invalidity of said law under the constitution of this state. This motion was overruled by this court on the 21st day of ____, 1891, and, before proceeding to dispose of the case on its merits, we deem it appropriate to briefly state our reasons for this action of the court in respect of this motion.

The act creating the St. Louis court of criminal correction provides that it shall be a court of record, and that the proceedings therein shall be governed by the laws regulating practice in criminal cases so far as the same may be applicable, and that "an appeal shall be allowed the defendant from any final judgment of said court to the supreme court (St. Louis court of appeals) if applied for within 10 days after the rendition of such judgment, but not otherwise. The manner of taking such appeals shall be the same, as near as may be, as is prescribed by law for taking appeals from circuit courts in criminal cases. Writs of error shall be allowed from the supreme court (St. Louis court of appeals) in like manner and with similar effect as writs of error to the St. Louis criminal court." 2 Rev. St. 1889, p. 2156. Section 4303, Rev. St. 1889, provides that "the provisions of this Code applicable to the circuit court and the judges thereof shall also be applicable to any other court of record exercising criminal jurisdiction and the judges thereof, in all cases when no other or different provision is made by law for the government and control of such courts and judges." The statute creating the St. Louis criminal court provides as follows: "Sec. 6. Appeals and writs of error, in case of final judgment or decision of said criminal court, may be allowed and prosecuted directly to the supreme court in the manner and with the effect, in all respects, as is prescribed by law in cases of such appeal or writ of error from the circuit to the supreme court in criminal cases." 2 Rev. St. 1889, p. 2150. Rev. St. 1889, on the subject of appeals and writs of error in criminal cases, have the following provisions: "Sec. 4289. The state, in any criminal prosecution, shall be allowed an appeal only in the cases and under the circumstances mentioned in the next succeeding section. Sec. 4290. When any indictment is quashed, or adjudged insufficient upon demurrer, or when judgment thereon is arrested, the court in which the proceedings were had, either from its own knowledge or from information given by the prosecuting attorney that there is reasonable ground to believe that the defendant can be convicted of an offense, if properly charged, may cause the defendant to be committed or recognized to answer a new indictment; or, if the prosecuting attorney prays an appeal to the supreme court, the court may, in its discretion, grant an appeal." "Sec. 4292. If no appeal be taken by or allowed to the state in any case in which an appeal would lie on behalf of the state, the prosecuting attorney may apply for and prosecute a writ of error in the supreme court, in like manner and with like effect as such writ may be prosecuted by the defendant."

The question is whether the state is entitled to the writ of error sued out in this case by virtue of the sections of the several statutes above quoted. It is not necessary for us to decide, and we do not decide, but we will assume for the purpose of this case, that a writ of error is not allowable under these sections where an appeal cannot be taken by the state. Defendant's contention is that the abovequoted sections of the statute, when properly construed, limit the state's right to an appeal or writ of error to those cases where the indictment or information is held insufficient in form or substance, and when the court has reason to believe the defendant may be convicted if properly charged, and that the information in this case was not quashed for any insufficiency of statement in form or substance, but solely on the ground that the act under which it was drawn is unconstitutional. In the first place, the defendant in his argument in support of his construction of these sections transposes the language used. The language of section 4290 is: "When any indictment is quashed or adjudged insufficient upon demurrer, or when judgment thereon is arrested." The defendant insists that this language "clearly indicates the intention of the legislature to limit the discretion of the trial court to situations where, upon motion to quash, demurrer, or motion in arrest, an indictment has been held insufficient." In the second place, in order to maintain his construction, he interpolates two words, "form" or "substance," after the word "insufficient." The case of State v. Bollinger, 69 Mo. 577, is cited with apparent confidence in support of defendant's contention, both as to the transposition of the language and the interpolation of the two words "form" and "substance." In that case the defendant filed what was termed a "motion in arrest of judgment," for the reasons that, defendant being a slave, and the party alleged to have been killed being a slave also, the alleged act of defendant was not punishable under the law. The bill of exceptions recited that "said motion was taken up, and, upon a hearing of the facts found by the court and the facts in the case as admitted and agreed upon by the prosecuting...