State v. Ledford

• Decision Date: 30 April 1832
• Citation: 3 Mo. 102
• Parties: THE STATE v. LEDFORD.
• Court: Missouri Supreme Court

3 Mo. 102

THE STATE

v.LEDFORD.

Supreme Court of Missouri.

April Term, 1832.

ERROR TO THE CIRCUIT COURT OF RALLS COUNTY.

M'GIRK, C. J.

This was an indictment for assault and battery against Ledford. The defendant moved to quash the indictment, and the motion was sustained. The case is brought to this court by a writ of error. On the 19th February, 1825, the General Assembly of the State passed an act to allow Justices of the Peace jurisdiction in cases of breach of the peace upon certain conditions; by which act it is provided, that when complaint is made on oath by any person, to a Justice of the Peace, of an assault and battery, the justice shall issue his warrant against the offender, shall proceed to a trial of the offense, and if the defendant is found guilty, shall impose a fine to the use of the county of not less than $5. The third section provides for a jury of twelve men to try the offense, and authorizes them to assess the fine so as not to exceed $80. The act then provides for collecting the fine, and says the defendant shall be imprisoned till the fine and costs are paid. The sixth section provides for an appeal to the Circuit Court. The act also provides that the defendant may have his election to be tried before the justice or before the Circuit Court. The tenth section of the act provides, that nothing contained in the act shall prevent the grand juries from presenting any person guilty of any offense against the public peace unless such person may have been punished therefor, under the provisions of this act, in such manner as may be a bar to further proceedings for the offense. At the time this act took effect, the offenses of assault and batteries were by law indictable in the Circuit Court by the finding of a grand jury. This court in the case of Stein v. The State, declared this act to be unconstitutional and void. See 2 Mo. R. 67.

By an act passed 18th January, 1831, it is declared, “that hereafter no assault, battery, affray, riot, or unlawful assembly, shall be held or considered an indictable offense, but the same shall be prosecuted and punished in a summary mode before a Justice of the Peace.” Then some cases of an aggravated nature are saved out of the act. By the second section, the act of 1825 is revived, and the jury may assess the fine, &c. It is assigned for error on the part of the State, that this last act and that of 1825, are both repugnant to the Constitution of the State, and are therefore void. That part of the Constitution of the State to which these acts are said to be repugnant by the Circuit Attorney, is found on the 9th section of the 18th article of the Constitution, which says that in all criminal prosecutions, “the accused has the right to be heard by himself or his counsel, to demand the nature and cause of accusation, to have compulsory process for witnesses in his favor, to meet the witnesses face to face, and in prosecutions on presentment or indictment to a speedy trial by an impartial jury of the vicinage. That the accused cannot be compelled to give evidence against himself, nor be deprived of life, liberty or property, but by the judgment of his peers or the law of the land;” and also the 14th section of the same article, which says, “that no person can for an indictable offense be proceeded against criminally, by information, except in cases arising in the land or naval forces,” &c.

It is argued by Mr. Hunt, Circuit Attorney for the State, First. That an assault and battery is a criminal case or offense, and must be proceeded against by indictment alone. That the words, by the law of the land, means due process of law which is by indictment or presentment of a grand jury, and to prove this he cites 4 Cokes's Institute, p. 50, where it is said that in the great charter of English liberty of Hen. III, “the words, by the law of the land, are interpreted to mean due process of law, and that is also interpreted to mean by indictment or presentment of a grand jury.” The Circuit Attorney also insists that this summary mode of proceeding is a proceeding by information, which is contrary to the Constitution of the State as above cited; and that the late statute is in no wise better than the act of 1825, which this court has declared to be unconstitutional.

The argument on the side of Ledford principally rests on the ground, that the Legislature have the right to define how offenses shall be punished and what shall constitute an offense, and that this offense not being now indictable, the Legislature may prescribe any other mode of proceeding against the offender, than by indictment.^(a)

In the case of Stein v. The State, I did not deliver the opinion of the court, but I did concur in the result of that opinion, but for reasons not expressed in the opinion. My view of that question is, that inasmuch as the offense of assaults and batteries were then indictable, and not made otherwise by the act of 1825, the proceeding before a Justice of the Peace in a summary way, was clearly a proceeding by way of information, or by a process in the nature of an information, while the offense still retained the character of an indictable offense; an information is defined to be a declaration or statement without being made on the oath of the grand jury, whereby a person is charged with the breach of some public law or penal statute.

It was a mere suggestion on the record, that an offense had been committed, and was in the nature of a declaration as to the particulars of the offense. See Jacobs' Law Dictionary, title Information, and 4 Blackstone's Com. 308-9-10. In page 309 Blackstone says, it lay for riots, batteries, libels; and Jacobs under the title above cited, says the same. An information then, as understood by the makers of our constitution, is a proceeding by way of complaint, without the intervention of a grand jury to punish a person for some violation of public law, such as breaches of the peace, riots, &c., or for felonies, no matter how disgraceful the offense may be.

By the English law, the offender had a right to a trial by a petit jury. Our statutes allow the same privilege. The 14th section of our bill of rights says, “no person can for an indictable offense, be prceeded against criminally by information, except,” &c. What does the constitution mean by the use of this prohibition? The convention surely intended to secure some right to the citizen, which otherwise might have been withholden from him.

By the common law, a person for many offenses might have been proceeded against either by information or by an indictment, 4 Bl. Com. 310. I understand the constitution to say this, and no more, that as long as the Legislature choose to say any offense is of sufficient magnitude to require the intervention of a grand jury to accuse the offender, or to secure him from unfounded prosecution for the offense, just that long shall such person be secured against all prosecutions by information for a like offense against public law.

In 1825, assaults and batteries were indictable, and while indictable, they could not be proceeded against by the summary mode authorized by the act of 1825.

The counsel for the State says, by way of argument, if the Legislature can make assaults, &c., not indictable, they can also declare that larceny, murder, and every other crime, shall no longer be indictable, whereby they may entirely dispense with a grand jury, and punish all offenses by information, whereby the security of life, liberty, and property would be greatly endangered.

My first answer to this inquiry is, that by the 5th article of the amended constitution of the U. S., it is declared that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in certain cases therein mentioned. This declaration of the constitution of the U. S., I understand to be the supreme law of the land. It therefore follows, that whenever the offense is made capital by law, and where the crime is infamous, the Legislature cannot authorize any other mode of proceeding, than by indictment or presentment. This throws a shield around the citizen to a great extent. What would be the true meaning of the words, infamous crimes, I will not now enquire, because I conceive breaches of the peace are not of that character. I will, however, name one authority on this point. (Jacobs' Law Dic., title Infamy, where it is said infamy extends to forgery, perjury, gross cheats, &c., disables a man to be a witness or a juror, and judgment of the pillory makes infamy). I will now examine the case as now presented: breaches of the peace are no longer indictable.

The constitution says, that in criminal prosecutions the accused cannot be deprived of life, liberty, or property, but by the laws of the land; and to ascertain what these expressions comprehend, we are referred to Coke's Institutes as above cited; by Coke it appears that the same words that are used in our constitution, were used in the great charter of English liberty, granted first by King John, and again and more fully granted by his son King Henry III, to the English people. The words of the charter on this point are, that “no man can be deprived of life, liberty or property, but by the judgment of his peers or the law of the land.” Lord Coke commenting on this charter, in a great many particulars, comes to the words above referred to, and says, nisi per legem terræ but by the law of the land;” he then says, “for the true sense and exposition of these words, see the statue of 37, Edward III, cap. 8, where the words by the law of the land, are rendered without due process of law, for there it is said, though it be contained in the great charter, that no man be taken, imprisoned, or put out of his freehold without process of law, that is by indictment or presentment of good and lawful men, where such deeds be done, in due manner or by writ original of the common law, without being...