State v. Stein

• Decision Date: 30 November 1828
• Citation: 2 Mo. 67
• Parties: STATE v. STEIN.
• Court: Missouri Supreme Court

2 Mo. 67

STATE

v.STEIN.

Supreme Court of Missouri.

November Term, 1828.

ERROR FROM THE JEFFERSON CIRCUIT COURT.

TOMPKINS, J.

Stein was indicted for an assault and battery in the Circuit Court of Jefferson county. He pleaded a former acquittal of the same offense before a Justice of the Peace; to this plea there was a demurrer which was overruled by the Circuit Court, and to reverse the judgment of the Circuit Court this writ was sued out. By an act of the Assembly, passed the 19th February, 1825, jurisdiction in cases of breaches of the peace was allowed to justices of the peace, and the accused might be tried and convicted without a previous indictment by a grand jury. The fifth article of the amendment to the Constitution of the United States, provides, among other things, that no person shall be deprived of life, liberty, or property, without due process of law; and the State Constitution, art. 13, § 9, declares that the accused cannot be deprived of life, liberty or property but by the judgment of his peers, or the law of the land. Mr. Kent, in his commentaries on American law, says, that the right of personal security is guarded by provisions which have been transcribed into the Constitutions of this country from Magna Charta, and other fundamental acts of the English Parliament. We must then examine and find out the meaning given by the English Courts and sages of the law to the terms used in Magna Charta, and those other fundamental acts of the English Parliament, in order to ascertain the intention of the framers of the Constitution of the United States and of this State. The same author adds, page 9th of 2d vol. of his commentaries: “It may be received as a self evident proposition, universally understood and acknowledged throughout this country, that no person can be taken, or imprisoned, or disseized of his freehold or liberties, or estate, or exiled or condemned, or deprived of life, liberty or property, unless by the law of the land or the judgment of his peers.” The words, “by the law of the land or the judgment of his peers,” are the very words used by the framers of our State Constitution. Let us see then what is their signification in the country from which we have borrowed them. Mr. Kent continues, “the words, ‘by the law of the land,’ as used in Magna Charta in reference to this subject,, are understood to mean due process of law; that is, by indictment or presentment of good and lawful men. And this, says Lord Coke, is the true sense...