State v. Kring

• Decision Date: 31 October 1881
• Citation: 74 Mo. 612
• Parties: THE STATE v. KRING, Appellant.
• Court: Missouri Supreme Court

74 Mo. 612

THE STATE

v.KRING, Appellant.

Supreme Court of Missouri.

October Term, 1881.

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Appeal from St. Louis Court of Appeals.

AFFIRMED.

L. D. Seward and P. N. Jones for appellant.

Crimes are local, and must be prosecuted in the county where they are committed; only in such county can a grand jury inquire of them. 4 Black. Com., 303; Bish. Crim. Prac., § 49; Hughes v. State, 35 Ala. 357. When a county is divided, a criminal action, before the division, can be prosecuted only in the particular new county where is the place of the offense. State v. Jones, 3 Halst. 307; State v. Jackson, 39 Me. 291; Hall v. State, 51 Ala. 9; State v. Donaldson, 3 Heisk. 48; State v. Jones, 4 Halst. 357; Bish. Crim. Prac., § 49; McElroy v. State, 13 Ark. 708. The first step in a prosecution in such new county is an indictment by a grand jury of such county. §§ 12 to 22, art. 2, Const. 1875. A statute providing that a person may be indicted by a grand jury of another county than the one where the offense was committed, has been held to be unconstitutional and the indictment invalid. Ex parte Slater, 72 Mo. 102. A new indictment should have been found in the present case. State v. Lewis, 69 Mo. 92.

Setting aside the plea of guilty when defendant refused in open court to withdraw it, was error. A defendant may, if he chooses, plead guilty, and no one but himself can withdraw such plea. Bishop Crim. Prac., 268; Younger v. State, 2 W. Va. 579. He may, by leave, withdraw his plea at any time before judgment. State v. Cotton, 4 Fost. (N. H.) 143; Reg. v. Sell, 9 Carr. & Payne 346. And also after judgment, when there has been a reversal. Comm. v. Ervine, 8 Dana (Ky.) 30. The court cannot require or compel one who has, by consent of the circuit attorney and by leave of the court, pleaded guilty, to withdraw his plea; neither can the court set aside his plea of guilty, and enter a plea of not guilty of a higher degree, of its own motion. When, after the reversal, the defendant was brought into court and asked if he desired to withdraw his plea, and he stated that he did not desire to do so, and his counsel moved the court to sentence him, the court should have done so, and the fact that he asked to be sentenced in accordance with an understanding between him and the circuit attorney, cut no figure. It was known to him, or if not, should have been made known to him, that the court would not be bound by the understanding or agreement, and then if he did not choose to withdraw his plea, the court should have sentenced him on his plea of guilty.

The court had no power to put defendant on trial again for murder in the first degree. A plea of guilty, regularly entered and regularly received, is equivalent to a conviction. State v. Goldstein, 32 Cal. 432; Shepherd v. People, 25 N. Y. 419. One convicted of murder in the second degree cannot be afterward tried for murder in the first degree. State v. Ross, 29 Mo. 38; State v. Smith, 53 Mo. 139. It cannot be claimed that the rule in the case of State v. Ross, and the law of the land, was abrogated by the constitution of 1875, as the offense was committed and the indictment was presented prior to the constitution of 1875, because it would be an ex post facto law prohibited by the Constitution of the United States. § 10, art. 1, Const. of the U. S.

The order appointing Judge Burckhartt was invalid, because the law of 1881 is unconstitutional, and by its terms does not purport to repeal section 16 of the act establishing the court. It is unconstitutional because it is a special law, regulating the practice in a judicial proceeding. Art. 4, § 53, Const. 1875; Ex parte Allen, 67 Mo. 534; State v. Daniels, 66 Mo. 192. It cannot be contended that the law of 1881 is unconstitutional only in part, and that the repealing clause may be valid, and that the general law would then apply, because when a law is passed in the place of, or as a substitute for, another, the repealing clause falls with it, if it is unconstitutional. State v. The Judge, 11 Wis. 50; Shepherdson v. Railroad Co., 6 Wis. 605; Tims v. State, 26 Ala. 165; Sullivan v. Adams, 3 Gray 476; Devoy v. The Mayor, 35 Barb. 264; Campan v. Detroit, 14 Mich. 276; Childs v. Shower, 18 Iowa 261; Harbeck v. N. Y., 10 Bosw. 366. Sections 1878, 1881, 1999, Revised Statutes 1879, do not repeal section 16 by implication, as the repeal of special laws by general laws is not favored. State v. McDonald, 38 Mo. 529; State v. Fiala, 47 Mo. 310; Cooley's Const. Lim., § 186; State v. Pearcy, 44 Mo. 159; State v. Daniels, 66 Mo. 192.

The case should have been sent to the St. Louis circuit court on defendant's motion. State v. Houser, 28 Mo. 233. The testimony of the witnesses, as appears from the affidavit, was important and necessary for the defense, and due diligence was shown, and the affidavit complied substantially with the statute, and a postponement or continuance should have been granted. State v. Klinger, 43 Mo. 127; State v. Lange, 59 Mo. 418; State v. Hollenscheit, 61 Mo. 302; State v. Lewis, 74 Mo. 222.

Error was committed in admitting testimony to prove the commission of other crimes. State v. Greenwade, 72 Mo. 298; State v. Reavis, 71 Mo. 420; State v. Nugent, 71 Mo. 136; People v. Fair, 43 Cal. 137.

Defendant's confessions that he was sane when the homicide was committed, were incompetent. People v. Pomeroy, 117 Mass. 143. In excluding the testimony of Dr. Schlernitzhaur, the court, after stating that the witness might be introduced out of time, erred in refusing to permit him to testify. 1 Grah. & Wat. New Trials, 260; 7 John. 306; 7 Greenl. 181.

Joseph R. Harris, Prosecuting Attorney of the city of St. Louis.

Section 23, article 2, constitution 1875, abrogates the rule laid down in State v. Ross, 29 Mo. 32, and State v. Smith, 53 Mo. 139. The rule now is that where a conviction for murder in the second degree on an indictment charging murder in the first degree has been set aside, the defendant is again triable for murder in the first degree--the previous proceedings being equivalent to a mistrial. State v. Sims, 71 Mo. 538. Neither a conviction nor a plea, under such circumstances as are detailed in this connection, would amount to an acquittal of the higher offense. All the proceedings relative to the plea of guilty of murder in the second degree, and the action of the court thereon, are subsequent to the adoption of the constitution of 1875. And the constitutional change is not a change in crimes, but in criminal procedure, and is not ex post facto. Gut v. State, 9 Wall. 35; Cummings v. Missouri, 4 Wall. 326. The defendant stood not upon the plea of guilty of murder in the second degree per se, but upon that plea accompanied with certain conditions as to punishment, which alleged agreement the court refused to entertain. The court had a perfect right to disregard any alleged agreement between defendant and the circuit attorney. To hold otherwise would be to place the sentencing of criminals in the hands of the prosecuting officer, and deprive the court of its most important function. The spirit of our laws places with the jury, under the supervision of the judge, the final execution of the law. Under the constitution of this State it cannot be elsewhere.

Sections 1878 to 1881 had no application to the criminal court of St. Louis city. Such of these last-mentioned sections as were in force when the St. Louis criminal court was organized were rendered inoperative in the jurisdiction of that court by virtue of sections 18 and 19 of the act creating that court, and such of them as have been passed since did not operate to repeal the provisions of this law, made especially applicable to that court and its jurisdiction. R. S., § 3158; Mauro v. Buffington, 26 Mo. 184; State v. McDonald, 38 Mo. 529.

The record discloses no application made under sections eighteen and nineteen of the criminal court act, for a change of venue. The criminal court had no jurisdiction to order a change of venue or entertain a petition for that purpose. The circuit court alone had jurisdiction, and the application of November, 1880, was therefore properly denied. It is also immaterial whether section 1878, Revised Statutes, repealed sections 16, 17 and 19 of the act establishing the criminal court, for the act of March, 1881, made full provision for the proceedings that were had. This act is constitutional. State v. Brown, 71 Mo. 454; State v. Laughlin, 73 Mo. 443.

The motion to send the cause to the circuit court of St. Louis county on the ground that the indictment was found in that county at a time when St. Louis city was a part of St. Louis county, and the motion to quash the indictment, were both properly overruled. The grand jury which returned the indictment was summoned from the body of the county, or political subdivision of the State in which the offense was committed. The indictment was returned to the St. Louis criminal court--the court in which the defendant was tried. It was not pretended that at the time of the finding the indictment, or at the time of the trial, the criminal court had not jurisdiction over offenses committed within the city. By what rule of law can it be said that a crime, committed within a territory which from the creation of the court has always been within its jurisdiction, cannot be tried by that court because a portion of its territory--not being that in which the crime was committed--has been taken away? No change was ever made as to the court in which this indictment should be tried, the only change being to effect the territorial limits over which the court might exercise jurisdiction. That there may be this partial abolition of jurisdiction is unquestionably settled. State v. Brown, 71 Mo. 454; State v. Laughlin, 73 Mo. 443.

D. H. McIntyre, Attorney General, also for the State.

Simply reversing and remanding a cause has been expressly held by this court to mean that a new trial shall be had. State v....