State v. Gustin

• Citation: 152 Mo. 108,53 S.W. 421
• Parties: STATE v. GUSTIN.
• Decision Date: 31 October 1899
• Court: Missouri Supreme Court

53 S.W. 421

152 Mo. 108

STATE v. GUSTIN.

Supreme Court of Missouri, Division No. 2.

October 31, 1899.

CRIMINAL LAW — FORMER CONVICTION — PLEA — CONVICTION UNDER ORDINANCE.

1. When a defendant in a criminal case seeks to set up a defense of former conviction under a city ordinance, for the assault charged in the indictment, where the record shows that he pleaded guilty and was fined, the plea of former conviction is not good, unless it shows an ordinance justifying the magistrate in receiving a plea of guilty and in imposing a fine.

2. Under Rev. St. § 3951, which provides that, when a defendant shall be acquitted or convicted upon an indictment, he shall not thereafter be tried or convicted of a different degree of the same offense, nor for an attempt to commit the offense charged in the indictment, or any degree thereof, or any offense necessarily included therein, provided he could have been legally convicted of such degree or offense, or attempt to commit the same, under the first indictment, the fact that defendant was convicted of an assault, in a magistrate's court, under a municipal ordinance, and fined, is not a bar to an indictment for an assault with a felonious intent, though the assault for which he was convicted under the ordinance was the same as the one referred to in the indictment.

Appeal from circuit court, Clinton county; W. S. Herndon, Judge.

William J. Gustin was convicted of felonious assault, and appeals. Affirmed.

E. C. Hall, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

GANTT, P. J.

The defendant was indicted at the May term, 1897, of the circuit court of Clinton county, for a felonious assault upon one Fernando A. Harter by feloniously shooting at said Harter with a certain loaded pistol, and thereby endangering the life of said Harter. At the January term, 1898, he was put upon his trial, and found guilty as charged, and his fine assessed at $100. From this he appealed to this court.

An inspection of the transcript discloses that although the assault of which defendant was convicted was committed September 16, 1896, he was not indicted until the May term, 1897; that he was not tried until January, 1898, and his appeal was not filed in this court until May 25, 1899,—15 months after the granting of the same. The sentence of the court was that the defendant stand committed to the custody of the sheriff until he paid his fine and the costs. No supersedeas was granted by the circuit court, and none by this court. It does appear, however, that on the 22d day of December, 1898, the sheriff approved an appeal bond to this court. It would seem that, if the sheriff complied with the sentence of the court,—and there appears no excuse for not so doing,—this fine would have been served out long before this unauthorized and so-called appeal bond was executed. The defendant has not paid the docket fee in this court, but upon the representation that the defendant was out on bond, and had in some manner obtained a perpetual stay, the clerk was ordered to docket this cause. When an appeal in a criminal case is not prosecuted without unnecessary delay, no good reason can be given why it should not be affirmed. Delays like this must and will continue to be a reproach to the law. It is now nearly three years since the indictment in this case was preferred.

The question raised upon this record is, however, an exceedingly important and interesting one. When the defendant was called upon to plead to the indictment for felonious assault, he filed a special plea in which he averred that on the 17th day of September, 1896, the city marshal of Plattsburg filed a written information before Hon. E. C. Hall, mayor of said city, charging defendant with unlawfully touching, striking, beating, and wounding said Harter contrary to section 14 of the ordinances of said city, entitled "Miscellaneous Offenses"; that said mayor issued his warrant for the arrest of defendant, and said marshal arrested defendant and took him before said mayor, and thereupon the following judgment was rendered by said mayor: "1896. Sept. 17. City of Plattsburg vs. Wm. J. Gustin. Now, on this 17th day of September, 1896, comes James R. Gibbany, city marshal, and files herein his complaint charging that the defendant, Wm. J. Gustin, did on the 16th day of September, 1896, at said city, then and there unlawfully assault, beat, strike, and wound one F. A. Harter in a rude and angry manner, contrary to ordinance, whereupon a warrant was issued for the arrest of said defendant, and placed in the hands of the marshal; and forthwith comes the marshal and brings the said defendant into court, and the defendant pleads guilty. His fine is fixed at the sum of one dollar, and it is ordered that the city recover of defendant the said sum of one dollar and costs, taxed at the sum of six dollars and forty-five cents. E. C. Hall, Mayor." It was admitted by the state that the assault charged in the indictment was the same to which defendant pleaded guilty in the mayor's court, save and except the prosecuting...