State v. Mathews

• Decision Date: 31 March 1851
• Parties: STATE v. MATHEWS.
• Court: Missouri Supreme Court

14 Mo. 133

STATE

v.MATHEWS.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM MARION CIRCUIT COURT.

LAMB, for The State. 1. A motion to quash is not the proper remedy where the objection is merely to the jurisdiction of the court. This defense being only available by plea in abatement. 2. The indictment is good upon its face, and therefore it was error to quash. If the motion to quash was intended to reach the objection that “the statute, upon which the indictment is based, was repealed before the indictment was preferred, then still this objection can avail nothing, for the reason that the common law rule relative to the effect of a penal statute (on proceedings already commenced) has been modified and entirely changed by statute. See Rev. Code, 1845, p. 698, §§ 15, 16.

RYLAND, J.

The defendant, George W. Mathews, was indicted for neglect of duty as a road overseer, in the Marion Circuit Court, at March term, 1849. The indictment was returned into court by the grand jury on the 14th day of March, 1849. It charged that the said defendant was overseer of a certain road district in said county of Marion, on the 25th of February, 1849, and that as such road overseer he failed and willfully neglected to keep the road in repair, on the 6th of March, 1849, setting forth formally the duties and specifying the neglects of the said overseer. The defendant appeared in court and filed his motion to quash the indictment. The court sustained the motion, and the circuit attorney excepted, and brings the case to this court by appeal.

By examining the record in this case, I find the following reasons for the support of the defendant's motion to quash the indictment, were assigned by him: 1st. Because there is no law to warrant it. 2nd. Because the court has no jurisdiction. There is no objection taken to the indictment: it was considered as sufficient, and will be thus considered by this court.

The defendant relies upon the statute passed by the last Legislature, changing the general road law in the counties of Pike, Marion, Knox, Monroe, Montgomery, Ralls, Lincoln, Lewis, Chariton and Livingston. This act was to be in force from and after its passage, and was approved March the 9th, 1849, six days previously to the finding of the indictment by the grand jury in this case. The act begins by declaring 1st section: “All special acts on the subject of roads and highways in the above counties, are hereby repealed.” See acts of Legislature, 1849, page 606. This act materially alters the punishment of road overseers. The act of 1845 puts the fine for neglect of duties at the sum of ten dollars. No more, nor less. The act of 1849 changes the court before which the trial of overseers, in the above named counties, is to be had, and also limits the punishment by fine not less than five nor more than one hundred dollars.

The defendant relies upon this last mentioned statute for the support of his motion to quash. He contends that the general road law of 1845 was repealed by the special road law of 1849, for the above named counties, and that at the time the indictment against him was found, there was no law in force in Marion county authorizing such a proceeding against a road overseer in that county. And such must have been the opinion of the Circuit Court.

I will now examine this opinion and see how it stands with the law governing this case.

There is no doubt but that at the common law the repeal of a statute creating an offense, without a saving clause in the repealing act, will deprive the courts of the power to punish for a repealed statute, even should an indictment be pending under such repealed statute at the time of its repeal. In the case of the Commonwealth v. Obed Marshall, 11 Pick. 350, Chief-Justice Shaw says: “It is clear that there can be no legal conviction for an offense, unless the act be contrary to law at the time it is committed; nor can there be a judgment, unless the law is in force at the time of the indictment and judgment.”

If this law ceases to operate by its own limitation or by repeal, at any time before judgment, no judgment can be given. Hence, it is usual in every repealing law, to make it operate prospectively only, and to insert a saving clause, preventing the operation of the repeal, and continuing the repealed law in force as to all pending prosecutions, and often as to all violations of the existing law already committed.” See 4 Yeates, 492, case of Hatfield township road. Justice Yeates says, “the rule is perfectly well settled that offenses committed against a statute while in force, cannot be punsed after the statute is repealed, without a special clause for that purpose in the latter statute.” See Miller's case, 1 Blacks. 451, 1...