State v. Kyle
| Decision Date | 21 December 1901 |
| Parties | THE STATE v. KYLE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Moniteau Circuit Court. -- Hon. Jas. E. Hazell, Judge.
Affirmed.
Edmund Burke for appellant.
(1) The information was not verified by the oath of the prosecuting attorney; neither was it verified by the oath of some person competent to testify as a witness in the case; neither was it supported by the affidavit of such person; neither has any such affidavit been filed with said information. R. S. 1899 sec. 2477. The form of the affidavit required to be made by the prosecuting attorney will be found in section 2479, Revised Statutes 1899. The only difference between the affidavit to be made by a private person and that made by the prosecuting attorney is, that the private person must be competent to testify of his own knowledge, and the prosecuting attorney is only required to make affidavit as to his best information and belief; but an affidavit of one is imperatively required. Sec. 2477, R. S. 1899. (2) The offense with which this defendant is charged is alleged to have been committed on the sixteenth day of November, 1900, while the amendment changing the mode of prosecutions by indictment or by information did not take effect until the twentieth day of December, 1900, when by the proclamation of the Governor of Missouri the amendment was declared to have received the requisite vote of the people. (3) This information was filed on the third day of January, 1901, in the vacation of the circuit court, with the clerk thereof, and without any order or direction of the court or the judge thereof, and was never presented to the court, nor filed by its direction, and the filing thereof by the clerk in vacation of court was a nullity. Blackstone's Commentaries, side paging 311; 5 Bacon's Abridgment, pp. 172, 180, 181, 182; R. v Willett, 6 T. R. 294; 2 Houck, P. E. C. C. 20, sec. 10; secs. 2512, 2513, R. S. 1899.
Boyle Priest & Lehmann and Walter H. Saunders, amici curiae.
(1) It is the duty of the courts to determine whether or not supposed constitutional amendments have been adopted. State v. McBride, 4 Mo. 303; Edwards v. Lesueur, 132 Mo. 410; art. 15, sec. 2, Constitution. (2) The petit-jury amendment (the seventh) attempted to submit two distinct propositions: first, the proportion of jurors requisite to return a verdict in courts not of record; second, in courts of record in such a way that both propositions had to be voted on jointly. It therefore violated the constitutional mandate (article 15, section 2) which requires each proposed amendment to the Constitution to be so submitted that it may be voted on separately, and this double-barreled resolution must snap. State v. Powell (Miss.), 27 So. Rep. 927; Am. Law Rev. July-August, 1900, p. 615.
Edward C. Crow Attorney-General, for the State.
(1) It is well settled that all negative or prohibitory clauses in a Constitution are self-enforcing. St. Joseph Board of Public Schools v. Patten, 62 Mo. 444; Ex Parte Snyder, 64 Mo. 58; Cummings v. Winn, 89 Mo. 56; Willis v. St. Paul Sanitarium Co., 16 L. R. A. 282; Hickman v. City of Kansas, 23 L. R. A. 662; Householder v. City of Kansas, 83 Mo. 488; Sheehy v. Railroad, 94 Mo. 574; Keith v. Bingham, 100 Mo. 300; Law v. People ex rel., 87 Ill. 385; Hills v. Chicago, 60 Ill. 86; 69 Cal. 479; 61 Cal. 276; 56 Cal. 649; 129 Pa. 151; Railroad v. Ihlenberg, 34 L. R. A. 396. Prohibitory provisions in a Constitution are usually self-enforcing to the extent that anything done in violation of them is void. Willis v. St. Paul Sanitarium Co., 16 L. R. A. 285. The question of the intention of those framing and adopting the amendment is, of course, the one that will control, and if an amendment is complete in itself as definitive legislation, then it will be held self-enforcing. This is to be determined from a consideration of the language used and the intrinsic nature of the provision itself. If the nature and the extent of the right conferred is such that it can be determined by an examination and construction of its own terms and no language is used indicating that the subject is to be referred to the Legislature for action, then the provisions should be construed as self-enforcing. (2) The terms, "information" and "indictment," used in the Constitution, are to be understood in their common-law sense. Ex Parte Slater, 72 Mo. 102; State v. Kelm, 79 Mo. 515. (3) The provisions became operative when the result of the canvass was announced December 20, 1900. 15 Tex.App. 50; 42 N.Y. 277; 62 N.W. 267. (4) Amendment providing for prosecution by information for felonies is not an ex post facto law. A law changing the mode of procedure from indictment to information in cases of offenses already committed is not an ex post facto law, and does not infringe upon any substantial right of the offenders. In re Wright, 13 L. R. A. 748; Session Acts Wyoming, 1890-91, ch. 59, p. 213; Ex Parte Bethurum, 66 Mo. 550; State v. Thompson, 141 Mo. 410; Duncan v. Missouri, 152 U.S. 377; Cooley's Const. Lim., ch. 9, p. 326; Thompson v. Missouri, 171 U.S. 383. (5) Information need not be sworn to nor based upon the oath of another. Art. 16, R. S. 1899; sec. 2477, R. S. 1899; State v. Ransberger, 106 Mo. 136; sec. 2750, R. S. 1899; 61 Mo.App. 159; State v. Briscoe, 80 Mo. 644; 88 Mo. 650. The information at common law was an accusation exhibited against a person for a criminal offense by the Attorney-General or the Solicitor-General and at his direction and under his oath of office and without oath. 4 Blackstone, pp. 308, 309 and 310; 1 Chitty's Criminal Law, pp. 845 and 846; 1 Bishop Criminal Procedure, sec. 144; State v. Kelm, 79 Mo. 515; State v. Briscoe, 80 Mo. 643. (6) The Attorney-General, at common law, need not ask leave of court to file an information. 4 Blackstone's Commentaries, p. 309; 2 Bishop Criminal Procedure, sec. 142. (7) The court will not even give him leave to file it for he does it of right. 42 Mo.App. 471; 1 Bishop Criminal Procedure, sec. 142. Blackstone says, as to the filing of informations, "For offenses so high and dangerous in the punishment or prosecution of which a moment's delay would be fatal, the law has given the crown the power of an immediate prosecution." 4 Blackstone, 309. An information can be filed with the clerk, and need not be filed in open court. 10 Enc. of Pleading and Practice, p. 456; 42 Tex. 88; 27 Mo.App. 628.
OPINIONIn Banc
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 thirteen dollars and sixty-five cents 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 agree 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's 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 that he took his pocketbook, containing thirteen dollars and sixty-five cents 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 five-dollar bills and the rest in silver. A few minutes after this occurrence the defendant went to Conrad's meatshop and bought some meat and paid for it with a five-dollar 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...
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