State v. Thomas

• Decision Date: 29 December 1923
• Citation: 256 S.W. 1028,301 Mo. 603
• Parties: THE STATE v. NELLIE THOMAS, Appellant
• Court: Missouri Supreme Court

256 S.W. 1028

301 Mo. 603

THE STATE v. NELLIE THOMAS, Appellant

Supreme Court of Missouri

December 29, 1923

Appeal from Adair Circuit Court; Hon. James A. Cooley Judge.

Affirmed.

Charles E. Murrell and Fogle & Fogle for appellant.

(1) The title of the act, under which the defendant is prosecuted, is as follows: "An Act to enact a new section, by adding a new section after Section 1901 of Article 3 of Chapter 15 of the Revised Statutes of Missouri of 1899, to be known as Section 1901a, relating to crimes and punishments. Section 1. Chicken stealing declared grand larceny." And the whole of the foregoing constitutes the title. Art. 4, Sec. 28, Mo Constitution; In re Cupples Estate, 272 Mo. 465. (2) The purpose of the title is to serve as a clear and comprehensive indicator of the act. State v. Sloan, 255 Mo. 311; Vice v. Kirksville, 280 Mo. 357; State ex rel. v. Hackmann, 292 Mo. 27. (3) There must be but one subject contained in the title, and that subject must be clearly expressed in the title. Art. 4, Sec 28, Mo. Constitution; State ex rel. School District v Hackmann, 292 Mo. 27. (4) The title must be the exclusive index to the legislative intent and act. State v. Muller, 45 Mo. 495; State ex rel. v. Co Court, 51 Mo. 350; Kansas City v. Payne, 161 Mo. 236; State v. District, 237 Mo. 103; State v. Bixman, 162 Mo. 5; Vice v. Kirksville, 280 Mo. 348. (5) The caption of a bill is a part of the title. State v. Doerring, 194 Mo. 398, 411; State v. Murlin, 137 Mo. 297, 305; State ex rel. v. Slover, 134 Mo. 10. (6) The expression of one subject, in the title to a bill, is the exclusion of every other subject which the act may contain. Berry v. Milling Co., 284 Mo. 182; State v. Bixman, 162 Mo. 68; Witzman v. Railroad, 131 Mo. 612; State v. Rawlins, 232 Mo. 558; State v. Crenshaw, 22 Mo. 457; Wharton's P. & P., sec. 237. (7) The title must not only express a subject, but must express that subject which is dealt with in the body of the act. State v. Railroad, 113 S.W. 916; State ex rel. v. Hackmann, 292 Mo. 27. (8) The act is void as a whole where the title expresses one subject and the act deals with a plurality of subjects. Hardware Co. v. Fisher, 269 Mo. 277; State v. Rawlings, 232 Mo. 544; 36 Cyc. 1034. (9) The statute under discussion is a new section. It is not declared in the title or body of the act, to be amendatory of any other section or act. It must, therefore, have followed the proceedings required for the enactment of independent legislation. State v. McEniry, 269 Mo. 228. (10) The statute is a criminal statute and should be strictly construed, and not extended or enlarged by judicial construction so as to embrace offenses or persons not clearly and plainly within its terms. State v. McMahon, 234 Mo. 614; State v. Koock, 202 Mo. 235; State v. Reed, 125 Mo. 48. (11) Where the title provides for a penalty, but the act does not, then the act is void; and if the act provides for a penalty, but the title does not, the act is void. State v. McEniry, 269 Mo. 228. (12) The constitutional limitation, which provides that no bill shall contain more than one subject, which shall be clearly expressed in its title, is mandatory and mandatory provisions must be fully complied with. Cooley's Const. Lim., p. 82; State v. Tiefel, 42 Mo. 578; State v. Miller, 45 Mo. 498; Williams v. Railroad, 233 Mo. 676; State v. Sloan, 258 Mo. 313; St. Louis v. Wortman, 213 Mo. 139; State v. Hitchcock, 241 Mo. 433; State v. Campbell, 210 Mo. 202; State v. Skillman, 209 Mo. 208; State ex rel. v. Hodgdon, 251 S.W. 131. (13) The title to an act may be traced through the Legislature, and such title, if insufficient, may not be validated by a general title used in a subsequent revision of the statutes. State v. Crites, 277 Mo. 194; State v. Rawlings, 232 Mo. 558; State ex rel. v. Wiethaup, 231 Mo. 463; Williams v. Railroad, 233 Mo. 680. (14) The reference, in the title of an act, to a previous act gives notice that the new act, to be enacted, will deal with the same subject as of the previous act. Asel v. Jefferson City, 287 Mo. 195; State ex rel. v. Heege, 135 Mo. 118; State ex rel. v. Imel, 242 Mo. 303; State ex rel. v. Co. Court, 128 Mo. 440; Birge v. Railroad, 244 Mo. 1. (15) If a section of the statute is to be amended the title of the amendatory bill should give notice of that fact. If a new section is to be enacted, in lieu of one to be repealed, the title should so declare and the two should deal with the same subject, as of the act amended or the act repealed. State v. McEniry, 269 Mo. 228; State v. Helton, 255 Mo. 170. (16) The title of an amendatory act is sufficient if it refers to the sections to be amended and if the act deals only with the subject of the sections to be amended; but not otherwise. State ex rel. v. Heege, 135 Mo. 112; State ex rel. v. Imel, 242 Mo. 292; Birge v. Railroad, 244 Mo. 87; Asel v. Jefferson City, 229 S.W. 1046. (17) The act under consideration was to follow Sec. 1901, R. S. 1899, and to be Section 1901a. But said Section 1901 relates to larceny, from a dwelling house, of property of less value than thirty dollars. Consequently, the subject of Section 1901 was not the subject of the proposed Section 1901a. R. S. 1899, sec. 1901. (18) The title of the act under discussion is: "to enact a new section, by adding a new section;" not to amend a section or chapter, but to enact a new law. It is, therefore, void because the subject of the bill is not clearly expressed in its title. There are but two ways to make a law in this State, to-wit, by an independent bill, or by an amendatory bill. Mo. Constitution, art. 4, secs. 25, 34. (19) Sec. 1901, R. S. 1899, refers to Section 1900 thereof. Said Section 1900 relates to larceny from a dwelling house, of property of the value of thirty dollars or more, while said Section 1901 relates to larceny, in a dwelling house, of property of less value than thirty dollars; but said Section 1901a is to be placed after said Section 1901 and is to be Section 1901a, and relates to the larceny of domestic fowls, which is a new subject, not even suggested in said Sections 1900 and 1901. It is, therefore, void. (20) Where the title is specified and restrictive, the act must be likewise limited. State ex rel. v. Hackmann, 292 Mo. 27; State v. Burgdoerfer, 107 Mo. 17; State v. Hurley, 258 Mo. 275; State v. Coffee & Tea Co., 171 Mo. 634; Berry v. Milling Co., 284 Mo. 182; State v. Fulk, 207 Mo. 26; State v. Persinger, 76 Mo. 346; State v. McEniry, 269 Mo. 228; Vice v. Kirksville, 280 Mo. 348. (21) Where a title descends to particulars and specifies a certain class included within the provisions of the act, to the exclusion of others, it does not sufficiently indicate the purport of the law, and is to that extent violative of the constitutional provision. State v. Sloan, 258 Mo. 313; State ex rel. v. Hackmann, 292 Mo. 27. (22) The title to an act may be so restrictive as to confine the body of the act to such phase of the subject as is indicated in the title. State v. Bryan, 39 So. 920; State ex rel. v. Hackmann, 292 Mo. 27. (23) In this case the title to the act descends into details and points out a particular class of property the stealing of which is made grand larceny without respect of value, and therefore cannot support a law which is levelled against a wholly different class of property and prohibits the stealing of other property not mentioned in the title. State v. Rawlings, 232 Mo. 557; State v. Sloan, 258 Mo. 313. (24) The act must relate to chicken stealing and no other part of the title. Rogers v. Tobias, 225 S.W. 804. (25) A bill is held, under provisions in constitutions similar to that in Missouri of 1875, to be void if its subject is, in the words employed in its title to express it, hidden in covert concealment or left to be groped for through doubts and difficulties, through obscurities and uncertainties and with misgivings and perplexities. Weaver v. Lapsley, 43 Ala. 227; Union P. R. Co's. App., 81 Pa. St. 93; Rader v. Twp., 39 N. J. L. 512; People v. O'Brien, 38 N.Y. 195; People v. Hills, 35 N.Y. 449; Durkee v. Jonesville, 26 Wis. 701. (26) The right to change of venue in criminal cases does not exist independently of statute, but is statutory only, and the statute must be strictly followed. 16 C. J. 218, sec. 332; State v. Witherspoon, 231 Mo. 706; State v. Sanders, 106 Mo. 188; State v. Wofford, 119 Mo. 408. (27) It is a certified copy of the proper order of removal, made by the Circuit Court of Schuyler County after granting the change of venue from the Schuyler County Circuit Court to Adair County Circuit Court, with the full transcript filed with the Clerk of the Adair Circuit Court before a juror is sworn in the cause, that gives that court complete jurisdiction. Sec. 3984, R.S. 1919; Gilstrap v. Felts, 50 Mo. 431; State v. Patterson, 73 Mo. 699; State v. Buck, 108 Mo. 622; State v. Dusenberry, 112 Mo. 258; State v. Buck, 120 Mo. 479; State ex rel. v. Lay, 128 Mo. 616; Linch v. Rand, 208 Mo. 1; State v. Decker, 217 Mo. 315; State v. Warner, 66 Mo.App. 149. (28) There is no order granting defendant (applicant) a change of venue to Adair County, in this transcript of the Clerk of the Circuit Court of Schuyler County, nor any order of removal. Sec. 3969, R. S. 1919. (29) There is no certificate of the Clerk of the Schuyler County Circuit Court, attached to a full transcript of his record in the case, but he certifies that the foregoing instrument, to-wit, the recognizance, is a full, true and complete transcript of the record. No order of a change of venue or order of removal. This is not sufficient. Sec. 3983, R. S. 1919. (30) The appearance of all parties at the trial of this cause, and the trial thereof without objection, did not give the Adair County Circuit Court jurisdiction of...