State v. Ebert

• Decision Date: 31 March 1867
• Parties: STATE OF MISSOURI, Respondent, v. ALBERT EBERT, Appellant.
• Court: Missouri Supreme Court

40 Mo. 186

STATE OF MISSOURI, Respondent,

v.ALBERT EBERT, Appellant.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Court of Criminal Correction.

Holliday and Sanders, for appellant.

I. The provision is a violation of § 24, art. 1, of the Constitution of the State of Missouri, which provides that “no person can, for an indictable offense, be proceeded against criminally by information,” &c. The question as to what is meant by an “indictable offense,” in this section of the Constitution, has been fully established in this State by the decisions of this court in the three following cases: State v. Stein, 2 Mo. 67; State v. Ledford, 3 Mo. 101; and State v. Cowan, 29 Mo. 330.

II. The appellant insists that the provision quoted from the 15th section of the act establishing the St. Louis Court of Criminal Correction is in direct violation of § 27, art. 4, of the Constitution, which provides that “the General Assembly shall pass no special law for any case for which provision can be made by a general law,” &c.

Colcord, for respondent.

I. The offense charged was a misdemeanor--R. C. 1865, p. 818, ch. 206, § 18.

II. The St. Louis Court of Criminal Correction has exclusive jurisdiction of all misdemeanors committed in St Louis county--§ 10 of “An act to establish a Court of Criminal Correction in St. Louis County,” R. C. 1865, p. 897.

III. No indictment can be found for any misdemeanor, under the laws of this State, committed in the county of St. Louis, but the same must be presented by information to the St. Louis Court of Criminal Correction --R. C. 1865, p. 897, § 15.

IV. The offense was proceeded against not at common law, but under that statutory provision which creates the offense and prescribes the penalty--R. C. 1865, p. 818, ch. 206, § 18.

V. The Legislature has full power to establish tribunals inferior to the Supreme, District and Circuit Courts, for the trial of civil and criminal cases, and to direct their mode of proceeding--§ 1, art. 6, Constitution, R. C. 1865, p. 35.

VI. The Legislature had full power to provide, by special law, that misdemeanors should be proceeded against by information in the county of St. Louis; for by reason of existing differences the necessity of such provision extended only to St. Louis county, and not to any considerable portion of the State; wherefore a general law could not be made applicable--§ 27, art. 4, Const., R. C. 1865, p. 32.

VII. The fact that one David Foster held the premises, where the prohibited gaming table was alleged to have been set up, under and by virtue of a written lease, furnishes no excuse to the defendant Ebert; for such lease was wholly void as against defendant, by reason of David Foster, the lessee of Ebert, having set up and kept a prohibited gaming table or device upon and in the leased premises, and such lease could not therefore in any manner affect the right or power of defendant to fully control the premises, or afford any excuse for a want of proper control and care of the premises upon his part--R. C. 1865, p. 818, ch. 206, § 22.

WAGNER, Judge, delivered the opinion of the court.

Ebert, the appellant, was proceeded against by information, in the St. Louis Court of Criminal Correction, under the 18th section of chapter 206 of the General Statutes of this State, for permitting gaming tables to be set up and used for the purpose of gaming in a house to him belonging, or by him occupied, or of which he had at the time the possession or control. The jury found him guilty and assessed a fine of fifty dollars against him. A motion was made for a new trial, and also in arrest of judgment, which motions being overruled by the court, an appeal was taken and prosecuted. The grounds relied upon in this court for a reversal of the judgment are that the fifteenth section of the act establishing the St. Louis Court of Criminal Correction, providing that offenses of this nature shall be proceeded with by information instead of indictment in St. Louis county, is antagonistic to the twenty-fourth section of the first article of the State Constitution; and also that the court erred in giving and refusing instructions.

In the declaration of rights as contained in the Constitution, it is asserted that no person can, for an indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or in the militia when in actual service, in the time of public danger, or, by leave of court, for oppression or misdemeanor in office. Section 15, Gen. Stat., p. 897, declares that after the Court of Criminal Correction shall have been organized and opened for the transaction of business, “no indictment shall be found for any misdemeanor under the laws of this State, committed in the county of St. Louis, the punishment whereof is by fine, or imprisonment in the county jail, or both, and the same shall be presented to the St. Louis Court of Criminal Correction by information.” The permitting a gaming table to be set up or used, for the purpose of gaming, by any person on premises belonging to him, or by him occupied, or of which he hath at the time possession or control, is by the general statutes a misdemeanor, punishable by fine, and an...