State v. Cox

Decision Date16 June 1922
Docket NumberNo. 23031.,23031.
Citation243 S.W. 144
PartiesSTATE ex rel. SCOTT v. COX et al., Judges, etc.
CourtMissouri Supreme Court

Ward & Reeves, of Caruthersville, for relator.

N. C. Hawkins, of Caruthersville, for respondents and American Express Co.

RAGLAND, C.

This is an original proceeding by certiorari in which relator seeks to have quashed the opinion and judgment of the Springfield Court of Appeals in the case of Elwood Scott, Respondent, v. American Express Company, Appellant, lately pending in that court, because, as it is alleged, they are in conflict with previous decisions of this court. The opinion is as follows:

"Action to recover $1,000 as a reward alleged to have been offered by appellant for `first information leading to the arrest and conviction' of each of two men who robbed an express messenger on a train between Dyersburg, Tenn., and Hickman. Ky., on October 18, 1917. Verdict for plaintiff, and defendant has appealed.

"An agreed statement of facts covering a part of the facts in the case was filed from which it appears that the robbery of the express messenger was committed by two men then unknown. A reward of $1,000 for first information leading to the arrest and conviction of each of these men or $2,000 for both was offered jointly by the Memphis & Gulf Railroad Company and the American Express Company. That the American Express Company, which joined in this offer of reward, was a joint-stock company. Afterwards the parties interested in this joint-stock company formed the defendant corporation by the same name and took over all the assets and continued the business of the joint-stock company. One Will Buntyn was tried in the circuit court in Dyer county, Tenn., on a charge of being one of the parties who robbed the express messenger and was convicted. After his conviction, he took an appeal to the Supreme Court of Tennessee and was liberated on bond pending that appeal. Before his case was reached on the Supreme Court docket be died. This suit to recover the reward for his arrest and conviction was filed after his death. The plaintiff then offered evidence tending to show that he had performed services which would entitle him to the reward if defendant were liable therefor when he filed his suit.

"The appellant contends that a demurrer to the evidence should have been sustained for several reasons, among which is the following: That, Buntyn having died pending his appeal his death abated the proceedings against him, and there was therefore no final conviction.

"If the appeal of Buntyn and his death pending that appeal to the Supreme Court abated the proceedings in such a sense as to take away from the verdict of the jury and the sentence of the trial court thereon their character as a conviction of Buntyn under the terms of the offer of reward, then plaintiff's cause of action never accrued, and the judgment should have gone for defendant in this case. In civil actions the judgment of the trial court remains in force as a valid judgment, though its enforcement may be suspended by giving bond, and the death of a party pending an appeal does not ordinarily abate or destroy the cause of action. In criminal cases, however, the death of the defendant pending an appeal from a judgment of conviction abates the prosecution or cause of action entirely. Town of Carrollton v. Rhomberg, 78 Mo. 547; State v. Perrine, 56 Mo. 602.

"Buntyn's death pending his appeal from a judgment of conviction against him abated the prosecution and cause of action against him for the alleged crime of which he had been convicted in the trial court, and for that reason plaintiff's cause of action never finally accrued. The offer of the reward and plaintiff's services in procuring the arrest and conviction of Buntyn constituted a contract which is to be construed by the same rules as any other contract. Hoggard v. Dickerson, 180 Mo. App. 70, 165 S. W. 1135.

"The contract must be given a reasonable construction, keeping in mind the purpose of the party offering the reward. The terms of the offer must be substantially complied with, and the conditions, if any, attached to the offer must be met before liability ensues. The offer of the reward in this case was for `first information' that would lead to the arrest and conviction of the guilty party. The purpose of the party offering the reward was to secure the punishment under the law of the person or persons who had committed the robbery. To him a conviction meant such a final judgment of a court of competent jurisdiction as would make the punishment of the offender certain. The verdict of guilty by a jury or the passing of sentence by the trial court meant nothing to him unless the judgment of the court was of such a character as to carry with it the punishment imposed by the law. The operation of the judgment entered on the verdict of guilty returned by the jury in the case against Buntyn was suspended by his appeal. The punishment imposed by the law was suspended pending the determination of the Supreme Court as to whether or not the conviction was legal, and whether or not any punishment would ever be imposed upon the party convicted could not be finally determined until the case should be decided by the Supreme Court.

"The Supreme Court of Kentucky held in Stone v. Wycliffe, 106 Ky. 252, 50 S. W. 44, 20 Ky. Law Rep. 1806, that liability on an offer of reward for arrest and conviction did not attach until after the affirmance of the judgment by the Supreme Court. The party claiming the reward in that case brought suit while the appeal in the criminal case was pending, and the court held he could not recover for the reason that there had been no final conviction such as to make the party offering the reward liable therefor.

"In the case of Baker v. M. W. A., 140 Mo. App. 619, 121 S. W. 794, an insurance policy had been issued on the life of Baker, who was a member of the fraternal order, and this policy, as well as the by-laws of the order, provided that any member and policy holder who should be convicted for felony should be automatically expelled and his policy become null and void. Baker, who was a member and policy holder, was convicted of a felony and appealed to the Supreme Court of this state, and pending that appeal he died. The widow, who was the beneficiary in the policy, brought suit, and the defense was made that Baker had been convicted of a felony, and for that reason his policy had been annuled. The St. Louis Court of Appeals held, however, that the conviction was not final, and that the policy must be paid.

"These cases uphold appellant's contention in this case, and we think rightly so.

"We have been cited by respondent to a number of cases which hold that a judgment of a circuit court in a civil case remains a valid judgment pending an appeal; also cases which hold that a party convicted of a felony is not relieved from the personal disqualification to testify as a witness or serve on a jury pending appeal. We have carefully examined these cases, but do not think they reach the point involved here. The question involved here is the proper construction to be given to the term `conviction' used in the offer of reward. We think it means a final judgment which settles the question of the guilt of the party. As long as that question remained in litigation in any way, there was no conviction as meant by the offer of reward. The death of the defendant before the final determination of the litigation prevented the judgment ever becoming final in the sense that, as a result, the punishment for the offense must follow.

"From what we have said it follows that plaintiff has no cause of action, and it will be unnecessary to discuss the other questions in the case.

"Judgment reversed."

The opinion discloses that the concrete question passed on by the court was...

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