State v. Kyle

• Decision Date: 03 December 1901
• Citation: 65 S.W. 763,166 Mo. 287
• Parties: STATE v. KYLE.
• Court: Missouri Supreme Court

65 S.W. 763

166 Mo. 287

STATE v. KYLE.

Supreme Court of Missouri.

December 3, 1901.

CONSTITUTION — AMENDMENT — WHEN TAKES EFFECT — CRIMINAL LAW — PROSECUTION — INFORMATION — EX POST FACTO — SIGNATURE.

1. Under Const. art. 15, § 2, prescribing the method of amending the constitution, providing that, if a majority of the qualified voters shall vote for an amendment, it shall be deemed to have been ratified, and shall be valid and binding, and Rev. St. 1899, § 7123, providing that such election shall be conducted and returns made thereof to the secretary of state as provided by law in cases of the election of state officers, and Id. § 7124, providing the returns shall be canvassed and result certified by the secretary of state to the governor, who shall issue his proclamation declaring an amendment ratified, and valid and binding as a part of the constitution, an amendment goes into effect on the canvass of the vote by which it is ratified, and not before.

2. The amendment of Const. art. 2, § 12, adopted at the election held November 8, 1900, providing that "no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information, which shall be concurrent remedies," was self-operating from the time it took effect.

3. The amendment of Const. art. 2, § 12, authorizing prosecution for felonies by information, was not ex post facto as to offenses committed before it took effect, since it only changed the mode of procedure, and did not aggravate or affect the crime or punishment, or alter the rules of evidence.

4. After the amendment of Const. art. 2, § 12, authorizing prosecution for felonies by information, went into effect, and before any statute was enacted regulating such procedure, an information filed by the prosecuting attorney was sufficient which complied with the requirements of the common law.

5. Leave to file information is unnecessary under the common law.

6. An information is not invalid under the common law because filed in vacation.

7. That attorney, filing an information, used the initials of his given name in signing, does not affect its validity.

In banc. Appeal from circuit court, Moniteau county; James E. Hazell, Judge.

Charles Kyle was convicted of robbery in the first degree, and appeals. Affirmed.

Edmund Burke, for appellant. E. C. Crow, Atty. Gen., for the State. Boyle, Priest & Lehmann and Walter H. Saunders, amici curiæ.

BURGESS, C. J.

Defendant was convicted in the circuit court of Moniteau county of robbery in the first degree, and his punishment fixed at five years' imprisonment in the penitentiary, under an information filed by the prosecuting attorney of said county in the office of clerk of the circuit court in vacation. He appeals.

On the evening of November 15, 1900, M. L. Moad, a farmer residing in said county, made his appearance in California very much under the influence of liquor, and with $13.65 in his pocketbook made his way into the barn of Mr. Swillum, which was in the rear of a saloon kept by him. Moad finally got into an alley a few feet in the rear of the saloon. The rear of the residence of Swillum abutted close upon the alley. The daughter of Swillum and another young lady, being attracted by noise made by Moad, directed the defendant, who was about the saloon, to remove him elsewhere. The testimony of the defendant, the young ladies, and Moad all agrees that defendant obeyed the order given him, and immediately approached the spot where Moad had located himself. The young ladies testified that at that time they could not see Moad. The reason was, as disclosed later, he was sitting down against the fence. Defendant says he went to Moad, and asked him to go away, as the ladies were objecting to his conduct. Moad says defendant told him that. Moad says he remarked to the defendant that, if the ladies and defendant would let him alone, he would not bother them. But defendant and Moad both agree that the defendant and the ladies were not willing to accept Moad's proposition to each let the other alone, and that the defendant "insisted on Moad moving on," which defendant immediately saw would be quite contrary to Moad's wishes. Moad testifies the defendant took hold of him, and he (Moad) gave him some small change in silver to go on and not molest him; that defendant took the silver; that in the meantime Moad became alarmed lest the defendant rob him, and he took his pocketbook, containing $13.65, out, and held it in his hand; that the defendant, seeing the pocketbook, grabbed hold of Moad, and he resisted; and the defendant then forcibly opened Moad's hand and took the pocketbook and ran away. The young ladies said the light was indistinct, and that from where they stood they could tell very little of what was going on. The defendant said he helped Moad up, and aided him to a wheelbarrow near by, and Moad tumbled into it, and defendant left; but the defendant denied having taken any money from Moad. The testimony showed Moad had two $5 bills and the rest in silver. A few minutes after this occurrence the defendant went to Conrad's meat shop, and bought some meat, and paid for it with a $5 bill, and received the change. The defendant admitted this, but testified that he got it from his wife. She testified he came home that evening, and got it, and went after the meat. He said he left Moad, and went home, and got the money, and returned, and bought the meat. Moad, soon after the occurrence in the alley, went into the saloon so Swillum testified and then passed out again. About an hour later, Swillum, after returning from his supper, found Moad sitting in a stooping position on the ground in the rear of his saloon, and invited him in, and he came. Swillum said Moad remarked, when he came in before supper, he felt like vomiting, and Swillum told him, in that event, he had better retire; and Moad adopted the suggestion and retreated from the saloon. When Moad came into the saloon the second time he took a seat, and staid until about 11 o'clock, and then complained, on leaving, to Swillum, that he had been robbed.

The counsel for the defendant moved to quash the information, alleging various reasons, and among others that the information was not properly signed by the prosecuting attorney, and because it was filed in vacation of the court, and because the offense was a felony, and when it was committed the constitution required all felonies to be prosecuted by indictment, and because the information was not sworn to by the officers, and because it was not supported by the affidavit of any citizen. The information, leaving off the style of the cause, is as follows: "In the Circuit Court of Moniteau County, Missouri. January Term, 1901. N. C. Hickcox, prosecuting attorney within and for the county of Moniteau, in the state of Missouri, under his oath of office, and upon his best knowledge, information, and belief, informs the court that Charles Kyle, on the 16th day of November, 1900, at the county of Moniteau and state of Missouri, in and upon one M. L. Moad unlawfully and feloniously did make an assault, and fourteen dollars of the lawful money of the United States, of the value of fourteen dollars, the property of the said M. L. Moad, from the person and against the will of the said M. L. Moad, then and there, by force and violence to the person of the said M. L. Moad, feloniously did rob, steal, take, and carry away, against the peace and dignity of the state. N. C. Hickcox, Prosecuting Attorney." "By the law of England, informations by the attorney general, without the intervention of a grand jury, were not allowed for capital crimes, nor for any felony, by which was understood any offense which at common law occasioned a total forfeiture of the offender's lands or goods, or both. 4 Bl. Comm. 94, 95, 310. The question whether the prosecution must be by indictment, or might be by information, thus depended upon the consequences to the convict himself." Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89; 1 Bish. New Cr. Proc. §§ 141, 142. And not until the amendment of section 12, art. 2, of the state constitution, adopted at the general election held on the 8th day of November, 1900, by which it is provided that "no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information, which shall be concurrent remedies," could a person be prosecuted criminally in this state for a felony otherwise than by indictment, "except in cases arising in the land and naval forces, or in the militia when in actual service in time of war or public danger"; but since that time they have been, and are now, concurrent remedies. The offense charged in the information was committed on the 16th day of November, 1900, and it becomes important in the outset to determine when the constitutional amendment took effect, — whether before or after the commission of the offense.

The provision of our constitution with respect to amendments reads as follows: Section 2. General Assembly may Propose Amendments — Submitted to Vote. — "The general assembly may, at any time, propose such amendments to this constitution as a majority of the members elected to each house shall deem expedient; and the vote thereon shall be taken by yeas and nays, and entered in full on the journals. The proposed amendments shall be published with the laws of that session, and also shall be published weekly in some newspaper, if such there be, within each county in the state, for four consecutive weeks next preceding the general election then next ensuing. The proposed amendments shall be submitted to a vote of the people, each amendment separately, at the next general election thereafter, in such manner as the general assembly may provide. If a majority of the qualified voters of the state, voting for and against any one of said amendments, shall vote for such amendment, the same shall be deemed and taken to have been...