State v. Noell

• Decision Date: 03 May 1927
• Parties: STATE OF MISSOURI, APPELLANT, v. CHARLES P. NOELL AND WILSON NOELL, RESPONDENTS.
• Court: Missouri Court of Appeals

295 S.W. 529

220 Mo.App. 883

STATE OF MISSOURI, APPELLANT, v. CHARLES P. NOELL AND WILSON NOELL, RESPONDENTS.

Court of Appeals of Missouri, St. Louis

May 3, 1927

Appeal from the Circuit Court of Marion County.--Hon. Charles T Hays, Judge.

AFFIRMED.

Judgment affirmed.

Ben Ely, Jr., Prosecuting Attorney and Roy Hamlin for appellant.

(1) In general where no modifying statute has been adopted and no contrary practice can be shown to have existed in this State the common-law forms of indictment prevail in Missouri. State v. Meyers (1889), 99 Mo. 107, 116; State v Cook (1902), 170 Mo. 214; State v. Cars (1897) 142 Mo. 610. (2) The information in the case at bar follows the form immemorially used at common law and appreved in many of our sister States whose statutes and constitutional provisions are the same as our own. Com. v. Davis (1831), 28 Mass. (11 Pick.) 359; Com. v. Snelling, 15 Pick. 432; Parcel's Case, Croke. Eliz. 195; Reg. v. Hannon, 6 Modern 311; Rex v. Urlu, 2 Saunders 308; Hawkins, Pleas of the Crown I, ch. 81, sec. 5; 2 Chitty Criminal Law, 233. (3) It is the purpose of an information to state only the issuable facts which are necessary elements in the State's case--the operative facts which give rise to the cause of action--and not mere evidentiary facts tending to prove these operative or ultimate facts. State v. Becker (1913), 248 Mo. 555, 154 S.W. 769; Mark Yick Hee v. U. S. (C. C. A. 2nd Ct., 1915), 39 C. C. A. 262, 223 F. 732. (4) The operative fact in a barratry case is the general habit or practice of defendant to go about stirring up strife and lawsuits and not the stirring up of any particular suit or suits. Bouvier's Law Dictionary (3 Ed.), p. 327; 4 Blackstone's Commentaries, 134; Coke on Littleton, 368; 5 Cyc. 617; Voorhees v. Door, 51 Barber (N. Y.) 580, 586.

Abbott, Fauntleroy, Cullen & Edwards for respondent.

(1) A common barrator is one who stirs up strife either in court or out of court, and to charge one with being a common barrator does not inform him whether he is charged with stirring up legal strife or circulating rumors, reports or disturbing the peace outside of court. 7 C. J., pp. 925, 926; Coke Litt. 268. (2) In an indictment for champerty it is not sufficient to charge one with being a common champertor, but the facts constituting the crime should be set forth, and the same rule must necessarily apply to other similar cases. Wharton's Crim. Pl. & Pr. (9 Ed.), p. 159, sec. 231; Wharton's Crim. Pl. & Pr. (9 Ed.), p. 105; U. S. v. Robinson, 266 F. 245; Bishop's Crim. Procedure (4 Ed.), sec. 532. (3) The information in this case is defective because it does not inform the defendant of the nature and cause of the accusation made against him. Cons. of Missouri, sec. 22; State v. Stoe, 132 Mo. 199; State v. Murphy, 141 Mo. 270; State v. Meisenberger, 171 Mo. ; State v. Ashner (Mo.), 216 S.W. 1014. (4) The statutes of Missouri have modified in a large measure the old common law as to barratry. R. S., sec. 691; O'Connor v. Transit Co., 198 Mo. ; In re Sizer & Gardener, 300 Mo. 369. (5) The indictment is defective because two cannot be jointly indicted for barratry. 7 C. J. 927; Rex v. Philips, 2 Str. 921, 93 Reprint 943.

DAUES, P. J. Becker and Nipper, JJ., concur.

OPINION

DAUES, P. J.--

The prosecuting attorney of Marion county commenced this prosecution by the filing of an information in the Hannibal Court of Common Pleas, charging the defendants with the crime of barratry, a misdemeanor under our statute. The case went to the circuit court of that county on a charge of venue, where defendants interposed a demurrer to the information; this the lower court sustained. The State has appealed.

Omitting formal parts, the information charges:

"That said defendants Charles P. Noell and Wilson Noell, on the day of , A. D., 1926, and at the said township of Mason, county of Marion, did then and there unlawfully from the day of , 1926, until the day of , 1926, and on each and every one of said days, were and are common barrators, and then and there, to-wit: on the said first-mentioned day, and thence to the day of the filing of this information, and on each and every one of said days, did move and stir up divers quarrels, strifes, suits and controversies among the people then and there being, to the common nuisance of all the people and against the peace and dignity of the State."

The demurrer, very lengthy and divided into eleven parts, is to the effect that the information does not set forth facts upon which its legal conclusion is based; does not give the nature and cause of the accusation against the defendants; that the information is so deficient that after trial the defendants would not be afforded a good basis for a plea of autrefois acquit or autrefois convict.

Section 3174, Revised Statutes Missouri 1919, provides that one convicted as a "common barrator" shall be deemed guilty of a misdemeanor and fixes the punishment. The statute does not attempt to define the crime of barratry. This, then, is left to the common law. We have not been afforded the citation of a single case in Missouri (nor can we find one) where this section of the statute has been involved. The reports of England and several of our States do contain cases involving indictments for barratry.

The lower court concluded on demurrer that the information did not sufficiently set out the nature and cause of the accusation. While this objection reaches back to our bill of rights, the Courts of Appeal have repeatedly decided attacks against a criminal charge for misdemeanor on this ground, and have measured the sufficiency of a charge on the general rule and the judicial decisions that an information or indictment must sufficiently advise the defendant so that he may make a proper defense. [See State v. Murphy, 164 Mo.App. 204, l. c. 208, 147 S.W. 520.]

Barratry is the offense of frequently exciting and stirring up quarrels and suits, either at law or otherwise. [4 Bla. Com. 134. See 1 Cowper 154, by Lord MANSFIELD; Bouvier's Law Dic. 327.]

Under the common law, an indictment for this offense must charge the offender with being a common barrator. [1 Siderfin's Reports, 282.] The proof must show at least three instances of offending. [Commonwealth v. M'Culloch, 15 Mass. 227; State v. Simpson, 1 Bal. (S. C.) 379; Commonwealth v. Mohn, 52 Pa. 243.] Our labor, then, is to first examine the general principles relating to the necessity, form and sufficiency of a formal accusation in criminal prosecutions.

Wherever established rules of criminal law exist it is fixed that a criminal accusation must be brought by a formal charge, openly made against the accused either by indictment or information filed in court. One is charged in law with a crime when he is called upon to answer such accusation. The information permitted in our jurisdiction is a written accusation of crime preferred by a public prosecuting officer without the intervention of a grand jury. So far as this question now before us is concerned, it is the same as an indictment. The caption and conclusion of informations and indictments need not be discussed. The vital part, then, is the charging part of the instrument. This contains the charge against the accused, and it has always been the anxiety of the courts to require a close observance of established forms and precedents in this particular. While there has been, of recent years, a more liberal deviation from such precedent, the charge always must be sufficient in all essentials to properly advise the accused of the nature of the crime with which he is charged. Whether the State proceeds by indictment or by information, the accused is, and always must be, entitled to be apprised of the distinct charge made against him in order that he may fully prepare for his defense. No system of jurisprudence could afford a fair trial unless this is required. While, as already said, there has been a yielding in the matter of form, the courts never have held that there can be any lessening in the rules that the substance--the nature and cause of the offense--must be sufficiently set forth.

Lord Hale has said that unseemly niceties in some indictments tend to reproach the law. That is true, but our American courts have avoided these prolixities but also are always sure not to infringe the substantial rights of the accused, and we embrace the idea that unnecessary forms and extreme technicalities, even in criminal pleadings, should be discarded, but never can there be an impairment of the accused's right to have the nature and cause of the accusation against him substantially set forth. And the rule always insists that an indictment must allege the offense with such fullness and precision that the defendant may know for what acts he is being prosecuted. A discussion of the modern trend in criminal procedure may be found in 14 Ruling Case Law, 171.

In the instant case we have the statute simply denouncing barratry. No definition of the offense is given. The mere general or generic term used in the statute does not sufficiently define the crime or set forth all the essential elements thereof, and of course the language of this statute is not sufficient. The information, then, must cover the elements of the crime as it comes from the common law. And in considering the information before us we must have in mind, too, that authorities from States which recognize a bill of particulars in criminal cases are not available to us in this adjudication. Missouri, as the bench and bar understand it, does not have such procedure.

In State v. Quinn, 40 Mo.App. 627, this court, through Judge ROMBAUER, announced that a bill of particulars in a criminal case has never prevailed in this State. This is the only reference that we can...