State v. Hamey

Decision Date29 March 1902
Citation168 Mo. 167,67 S.W. 620
PartiesSTATE v. HAMEY.
CourtMissouri Supreme Court

1. Const. art. 6, Amend. 1890, § 1, confers exclusive cognizance of all criminal cases pending in the supreme court upon division No. 2 thereof, provided that a cause therein may be transferred to the court in banc as provided in section 4 of such amendment. Section 4 provides that, when a judge of a division dissents from the opinion therein, the cause, on motion of the losing party, shall be transferred to the court in banc for its decision. Held to expressly authorize transfer of a cause, on motion of the state, when one judge dissents, and to confer jurisdiction of an appeal on the court in banc, and thereby suspend a judgment of discharge to abide the judgment of the court in banc.

2. Const. 1875, art. 2, §§ 22, 28, 30, guarantying the right of trial by jury "as heretofore enjoyed," secures to the accused the right to a trial by jury only as it existed at common law, notwithstanding the duty of assessing the punishment had been theretofore imposed by statute on the jury; and hence Rev. St. 1899, § 1838, punishing as for felony a person guilty of having carnal knowledge of an unmarried female between specified ages, is not unconstitutional because it permits the court, instead of the jury, to assess the punishment within the limitations prescribed thereby.

3. Rev. St. 1899, § 1838, provides that if any person over the age of 16 shall have carnal knowledge of an unmarried female, of previously chaste character, between the ages of 14

and 18, he shall be deemed guilty of a felony, and on conviction shall be punished as therein prescribed. Held, that the act was a general, and not a special, law, operating in every county of the state, equally on all who violated its provisions, and establishing one mode of punishment for all such.

4. In a prosecution under Rev. St. 1899, § 1838, for having carnal knowledge of an unmarried female, the fact that the jury assessed the punishment does not vitiate the verdict, as the court could ignore it and assess the punishment itself as such section provides, and must be held to have done so, by adopting it and rendering judgment.

5. In a prosecution under Rev. St. 1899, § 1838, for having carnal knowledge of an unmarried female, defendant cannot complain of the admission of declarations of the prosecutrix drawn out of a witness at his own instigation.

6. Rev. St. 1899, § 1838, punishes as a felony carnal knowledge of an unmarried female between specified ages, of previously chaste character. Held, that one accused thereunder could be convicted notwithstanding the evidence showed the use of force, and that he was liable, also, to a prosecution for rape.

Sherwood and Marshall, JJ., dissenting.

In banc. Appeal from criminal court, Buchanan county; B. J. Casteel, Judge.

John Hamey was convicted of a violation of Rev. St. 1899, § 1838, by having carnal knowledge of an unmarried female, and he appeals. Affirmed.

Culver & Phillip, for appellant. The Attorney General, for the State.

GANTT, J.

The defendant was indicted in the criminal court of Buchanan county for a violation of section 1838, Rev. St. 1899, which was enacted April 8, 1895 (Laws Mo. 1895, p. 149). That act provides that "if any person over the age of sixteen years shall have carnal knowledge of any unmarried female, of previously chaste character between the ages of fourteen and eighteen years of age, he shall be deemed guilty of a felony and upon conviction shall be punished by imprisonment in the penitentiary for a term of two years, or by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than one month or more than six months or by both such fine and imprisonment, in the discretion of the court." The defendant was duly arraigned, and entered his plea of not guilty. At the November term, 1901, of said court, he was tried by a jury duly impaneled, which returned the following verdict: "We, the jury, find the defendant guilty, and assess his punishment at imprisonment in the county jail for a term of one month, and a fine of five hundred dollars." And, his motions for new trial and in arrest having been overruled, the court sentenced the defendant to imprisonment in the county jail for one month, and to pay a fine of $500. From that sentence he appeals. On a hearing of said appeal in division No. 2 the judgment of the criminal court was reversed, but, one of the judges dissenting, the cause, on motion of the attorney general, was ordered transferred to the court in banc, and it has been again argued at length.

1. When the cause was reversed in division No. 2 of this court, it was accompanied with an order of discharge. After the order was made transferring the cause to the court in banc, the defendant filed his motion to strike the same from the files, because, as he alleged, the constitution did not confer upon the attorney general the right to have said cause transferred after a judgment by division No. 2 in favor of defendant's discharge. The argument is that as the state is not entitled to an appeal or to a review of a judgment rendered in the trial court, except in those instances expressly allowed by statute, it follows that it can have no right to have the judgment of an appellate court reviewed unless that right be expressly given. This contention ignores the amendment to the constitution of this state which was adopted at the general election in November, 1890. Section 1 of that amendment confers exclusive cognizance of all criminal cases pending in the supreme court upon division No. 2 thereof, provided that a cause therein may be transferred to the court in banc as provided in section 4 of said amendment. Const. art. 6, Amend. 1890. Section 4 provides that, "when a judge of a division dissents from the opinion therein," "the cause on the motion of the losing party shall be transferred to the court in banc for its decision." Here, then, is the express authority in the organic law for removing the cause into the court in banc. It is not, however, an appeal. The provision was designed to give a losing party in either division of the court a hearing, under the conditions specified, by the whole court in banc. It has been uniformly ruled that the state was entitled to the same benefit of this provision as any other party. State v. Marcks, 140 Mo. 656, 41 S. W. 973, 43 S. W. 1095. We are unanimously of opinion that the order of transfer made by division No. 2 in this cause conferred jurisdiction of this appeal on the court in banc, and that the judgment of discharge by division No. 2 was thereby vacated, or at least suspended to abide the judgment of the court in banc; and accordingly the motion to strike the cause from the docket is overruled.

Recurring now to the questions arising on this record:

The first proposition advanced by defendant is that section 1838, Rev. St. 1899, is unconstitutional, in that it violates sections 22, 28, and 30 of article 2 of the constitution of Missouri of 1875. Those sections are in these words:

"Sec. 22. In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses face to face; to have process to compel the attendance of witnesses in his behalf; and a speedy public trial by an impartial jury of the county."

"Sec. 28. The right of trial by jury as heretofore enjoyed shall remain inviolate; but a jury for the trial of criminal or civil cases in courts not of record may consist of less than twelve men as may be prescribed by law. Hereafter a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment or a true bill."

"Sec. 30. That no person shall be deprived of life, liberty or property without due process of law."

The first premise assumed by the learned counsel is that "the right of trial by jury at common law meant that one part of the jury's duty was to return into court a verdict, if they found defendant guilty, assessing his punishment as provided by law, or a general verdict of guilty, and thereupon the court fixed his punishment." Citing Bl. Comm. bk. 4, p. 361. The text of Blackstone cited does not sustain counsel. On the contrary, that learned author says: "When the evidence on both sides is closed, and, indeed, when any evidence hath been given, the jury cannot be discharged, unless in cases of evident necessity, till they have given in their verdict, but are to consider of it and deliver it in, with the same forms as upon civil causes, only they cannot, in a criminal case which touches life or member, give a privy verdict. But the judges may adjourn while the jury are withdrawn to confer, and return to receive the verdict in open court. And such public or open verdict may be either general, `Guilty,' or `Not guilty,' or special, setting forth all the circumstances of the case, and praying the judgment of the court whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. This is where they doubt the matter of law, and therefore choose to leave it to the determination of the court, though they have the unquestionable right of determining upon all the circumstances, and finding a general verdict if they think proper so to hazard a breach of their oaths. And if their verdict be notoriously wrong they may be punished and the verdict set aside by attaint at the suit of the king, but not at the suit of the prisoner." But the practice heretofore in use of fining, imprisoning, or otherwise punishing jurors, merely at the discretion of the court, for finding their verdicts contrary to the...

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