State v. Gregori

• Decision Date: 04 February 1928
• Docket Number: 27074
• Citation: 2 S.W.2d 747,318 Mo. 998
• Parties: The State v. Albert Gregori, Appellant
• Court: Missouri Supreme Court

2 S.W.2d 747

318 Mo. 998

The State v. Albert Gregori, Appellant

No. 27074

Supreme Court of Missouri

February 4, 1928

Appeal from Juvenile Division of Circuit Court of City of St. Louis Hon. Moses Hartmann, Judge.

Reversed and remanded to Circuit Court.

Verne Lacy for appellant.

North T. Gentry, Attorney-General, and W. F. Frank Assistant Attorney-General, for respondent.

(1) The indictment in this case properly charges the crime of murder in the first degree. Sec. 3230, R. S. 1919; State v Conley, 255 Mo. 187; State v. Baird, 297 Mo. 224; State v. Ferguson, 278 Mo. 131; State v. Privitt, 175 Mo. 223; (2) The judgment and sentence is in approved form. State v. Williams, 191 Mo. 214.

OPINION

Davis, C.

Defendant was charged in an indictment filed in the Circuit Court of the City of St. Louis, Missouri, with murder in the first degree. On ascertaining that he was a minor of the age of seventeen years, the cause was transferred to the juvenile division of said circuit court, where he was tried and, on November 19, 1925, convicted of first degree murder for killing one Robert E. Woody. The sentence was life imprisonment.

Without the benefit of a bill of exceptions, for the record does not contain such, we are necessarily confined to a consideration of the record proper, charged with the duty of examining it, however, to determine whether defendant has been fairly tried. The record proper shows that on the 17th day of November, 1925, the defendant was arraigned and entered a plea of not guilty; that thereafter on the same day he was put upon his trial before a jury, duly empaneled, charged and sworn to try the cause, which jury on November 19, 1925, returned into court the verdict; that thereafter defendant filed his motion for a new trial, which the trial court in due course overruled, and thereafter allocution was had and judgment and sentence pronounced in accordance with the verdict, from which an appeal was duly taken to this court.

I. The record advises us that defendant was indicted by the grand jurors in the Circuit Court of the City of St. Louis for murder in the first degree. The circuit court, upon ascertaining that defendant was seventeen and under the age of eighteen years, transferred the cause to the Juvenile Court of the City of St. Louis for trial, where he was later convicted of murder in the first degree and sentenced to the penitentiary for life.

The determinative question on the record and the statutes then arises relative to the jurisdiction of the juvenile court over a minor seventeen and under the age of eighteen years in counties of fifty thousand population or more.

Before the Legislature amended Chapter 21, Article 6, of the Revised Statutes of 1919, both Chapter 21, Article 6, comprising Section 2591 et seq. apposite to counties of fifty thousand population or more, and Chapter 11, Article 5, comprising Section 1134 et seq. apposite to counties of less than fifty thousand population, treated of neglected and delinquent children under the age of seventeen years. Chapter 21, Article 6, relative to counties of fifty thousand population or more, was amended as shown by the Laws of 1923, page 153, by striking out the word "seventeen" and inserting in lieu thereof the word "eighteen," thereby attempting to render the Juvenile Court Act, relative to counties of fifty thousand population or more, applicable to every child under the age of eighteen years. However, we are unable to find any amendment in that regard as to Chapter 11, Article 5. This situation then obtains: That in counties of fifty thousand population or more children seventeen years of age are subject to the Juvenile Court Act, while in counties of less than fifty thousand population children seventeen years of age are not subject to the Juvenile Court Act, and are subject to criminal responsibility.

We then have legislation in this State which does not apply equally to inhabitants of every section. In 12 Corpus Juris, page 1186, it is said:

"Legislation is void as contravening the equal protection guaranty which makes an act a crime when committed by one person, but not so when committed by another in like situation, or which makes the question as to whether a certain act is criminal or not depend on an arbitrary or unreasonable distinction between persons or classes of persons committing it."

The above work cites American Sugar Co. v. McFarland, 229 F. 284, affirmed in McFarland v. American Sugar Refining Co., 241 U.S. 79, and Budd v. State, 3 Humph. 483, 39 Am. Dec. 189, as well as other authorities, in support of the rule.

In Budd v. State, supra, it was held that the indictment was founded upon a section of an act to charter the Union Bank of the State of Tennessee, which provided that any officers of the bank who appropriated the funds of the bank to their own use were guilty of a felony. The court held that this section was in violation of the law of the land, because the officers of the bank were the only persons in the State comprehended or affected by the act imposing criminal liability.

By a reference to Section 1136, applicable to counties of less than fifty thousand population, we find that, in the discretion of the judge of the circuit court, any petition alleging a child to be delinquent may be dismissed and such child prosecuted under the general law when in the judgment of such judge such child is not a proper subject to be dealt with under the reformatory provision of Chapter 11, Article 5, while a reference to Chapter 21, Article 6, advises us that no such provision obtains. Therefore, according to said articles any child in counties of less than fifty thousand people in pursuance to the discretion of the judge of the circuit court may be prosecuted under the general criminal law, while in counties of fifty thousand population or more, the circuit court may not in its discretion dismiss the petition for delinquency and proceed to trial under the general criminal laws of the State.

It is then seen that the laws of this State are not uniformly applicable. It is the general doctrine that the law, relative to those who may be charged and convicted of crime, as well as the punishment to be inflicted therefor, shall operate equally upon every citizen or inhabitant of the State.

Ex parte Jilz, 64 Mo. 205, with respect to what is now Article 2, Section 30, of our Constitution, that no person shall be deprived of life, liberty or property without due process of law, declares that a law prescribing a punishment in one county different from that prescribed by a general law for the remainder of the State violates this section of the Constitution. In State v. Buchardt, 144 Mo. 83, it is held that it is not permissible under our Constitution to punish the same offense or violation of some public or general law by one species of punishment in one locality and by a different or more heavy punishment in other localities in this State. A law inflicting such different penalties for the perpetration of any given crime cannot bear the test of judicial examination. The Court say in In re Lorkowski, 94 Mo.App. 623: "A child under sixteen years of age might be convicted for scribbling his name on the walls of the courthouse in the city of St. Louis and be committed to the house of refuge and kept there until he became twenty-one years of age; when for a like thoughtless act by a country child of the same age, his punishment would be a fine of one dollar or probably one cent (Sec. 1975, R S. 1919). Such unequal punishment is not to be thought of, and the act which seemingly authorizes it must yield to the provisions of the general law as expressed in Section 2381, and we hold that so much of Section 6 of Article 21 as prohibits the court of criminal correction from committing a person,...