Stinger v. Krueger

• Decision Date: 22 December 1919
• Docket Number: No. 21582.,21582.
• Citation: 280 Mo. 293,217 S.W. 310
• Parties: STATE ex rel. STINGER v. KRUEGER, Judge.
• Court: Missouri Supreme Court

217 S.W. 310

280 Mo. 293

STATE ex rel. STINGER v. KRUEGER, Judge.

No. 21582.

Supreme Court of Missouri, in Banc.

December 22, 1919.

Proceedings by the State of Missouri, on the relation of William Stinger, to prohibit Hon. Chauncey J. Krueger, Judge of the St. Louis Court of Criminal Correction, from trying a case against the relator. Writ denied.

Campbell Allison, of St. Louis, for relator. Howard Sidener, of St. Louis, for respondent.

C. Orrick Bishop, of St. Louis, Judge Advocate of Police Department (B. H. Charles, of St. Louis, of counsel), amici curiæ.

GOODE, J.

Relator, William Stinger, seeks to prohibit the St. Louis court of criminal correction from trying a case against him wherein, by the information of the prosecuting attorney of said court, he is charged, as a member of the metropolitan police department of the city of St. Louis, with willfully, unlawfully and maliciously arresting and imprisoning Edward Meany, while relator was acting in his official capacity, and with willfully and unlawfully intending to oppress said Meany, and deprive him of his liberty without any warrant to authorize the arrest, knowing Meany had been guilty of no violation of the law; in short, a prosecution for oppression in office, based on section 4411 of the Revised Statutes of 1909. That statute is as follows:

"Every person exercising or holding any office of public trust who shall be guilty of willful and malicious oppression, partiality, misconduct, or abuse of authority in his official capacity or under color of his office, shall, on conviction, be deemed guilty of a misdemeanor." Section 4411, R. S. 1909.

As regards punishment for a violation of said section, another section provides:

"Every person who shall be convicted of any of the offenses mentioned in the preceding sections of this article shall be forever disqualified from holding any office of honor, trust or profit under the Constitution and laws of this state, and from voting at any election; and every officer who shall be convicted of any official misdemeanor or misconduct in office, or of any offense which is by this or any other statute punishable by disqualification to hold office, shall, in addition to the other punishment prescribed for such offenses, forfeit his office." R. S. 1909, § 4413.

Still another section says:

"Every officer or person holding any trust or appointment, who shall be convicted of any willful misconduct or misdemeanor in office, or neglect to perform any duty enjoined on him by law, where no special provision is made for the punishment of such misdemeanor, misconduct or negligence, shall be punished by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment." R. S. 1909, § 4416.

The jurisdiction of the court of criminal correction was conferred in the act which established it, in these words:

"Said court shall have exclusive original jurisdiction of all misdemeanors under the law of the state committed in St. Louis county, the punishment whereof is by fine or imprisonment in the county jail, or both, except in cases of assault and battery and affray, which shall continue to be cognizable by justices of the peace and in relation to which the jurisdiction of said court shall be concurrent with them." Session Laws 1865-66, p. 78, § 10.

That act was amended in 1868 (Sess. Laws 1868, p. 265), section 10 of the original act becoming section 13 of the amendment, but with a modification which was carried into a second amendment. Laws 1869, pp. 194, 196. In section 13 of the act of 1869, the jurisdiction of the court was thus defined:

"Said court shall have exclusive original jurisdiction of all misdemeanors under the laws of this state committed in St. Louis county, the punishment whereof is by fine, or imprisonment in the county jail, or both, or by any forfeiture, except cases of assault and battery, and affray or riotous disturbance of the peace, which (are) cognizable by justices of the peace, and in relation to which the jurisdiction of said court shall be concurrent with them, and the said Court shall have concurrent jurisdiction with the police court of the city of St. Louis of all offenses which may be declared to be misdemeanors under any law of the state, and which may also be in violation of any ordinance of the city of St. Louis."

It should be stated that since the separation of the city of St. Louis from the county the jurisdiction is confined to offenses committed in the city. State ex rel. v. Wilder, 198 Mo. 166, 172, 95 S. W. 910.

The court of criminal correction is a court of record, consisting of two divisions organized alike. The judges must possess the qualifications of a judge of the circuit court; the clerk those of a clerk of the circuit court; a prosecuting attorney is provided for who must possess the qualifications required of other prosecuting attorneys; the court may grant writs of habeas corpus; has jurisdiction of criminal appeals from justices of the peace; writs of error and appeals lie from it as from circuit courts, and with bills of exceptions. But nevertheless it is not a court proceeding according to the course of the common law, and therefore has cognizance of no matters except those intrusted to it by the statutes. Ex parte O'Brien, 127 Mo. 477, 30. S. W. 158; State ex rel. v. Murphy, 132 Mo. 382, 33 S. W. 1136, 53 Am. St. Rep. 491; State v. Anderson, 191 Mo. 134, 90 S. W. 95.

Its jurisdiction of the offense charged against relator is denied for several reasons, which may be stated thus: First, the amendment of the jurisdictional section of the orignal act was intended to enable the court to try misdemeanors punished by a forfeiture of money, but not those punished by other forfeitures; for example, of an office. Second, the offense of oppression in office is not a misdemeanor at all, and neither is it a felony, but an anomalous crime, distinct from either of those classes; and, as the court of criminal correction is given cognizance only of misdemeanors, it has none of the case against relator. Third, the phrase, "or by any forfeiture," in the amendatory acts, excludes from the court's cognizance misdemeanors punishable by fine, imprisonment in jail, or both, and a forfeiture.

In support of their first proposition counsel for relator say the word "forfeiture" was used in the amendment in the sense of a fine; and sometimes it is thus used, especially in statutes prescribing the punishment for an offense. An instance is Ex parte Alexander, wherein the petitioner was seeking to be discharged from custody, he having been detained for nonpayment of a fine imposed under a statute providing for a forfeiture of not more than $1,000 for selling lottery tickets. The prisoner contended the statute authorized no fine; hence the one assessed was illegal, and he could not be imprisoned for not paying the one assessed. It was held "forfeiture" in the statute meant "fine," and the sentence of a fine was lawful. Ex parte Alexander, 39 Mo. App. 108. A statute declaring that any one convicted of betting on an election "should forfeit and pay the sum of one hundred dollars, to be recovered by indictment," was interpreted to mean an offender should be fined that sum. Commonwealth v. Avery, 14 Bush (Ky.) 625, 638, 29 Am. Rep. 429. Similar cases might be cited. The statute we are dealing with was not enacted to prescribe the punishment for an offense, but instead to define what offenses a particular court may try, the criterion being the punishments prescribed for them in other statutes; and it may be that some statute had created a misdemeanor punishable by a forfeiture other than one of money, which the Legislature intended, by the amendment, to confer on the court power to try. The question at this point is, was that the legislative purpose? The reasonable view is that the jurisdictional clause was amended in order to enlarge the jurisdiction of the court, not to leave it unchanged and if "forfeiture" in the amendatory; acts was used as a synonym of "fine." It was a futile repetition, which added nothing to the court's jurisdiction, since from the time of its creation it had possessed cognizance of misdemeanors punishable by a fine.

But the phrase in the amendment is "by any forfeiture," words of broader significance than "forfeiture" by itself would be; for it is difficult to perceive how a statute conferring jurisdiction over misdemeanors, "the punishment whereof is * * * by any forfeiture," can be interpreted to mean only misdemeanors punishable by a single kind— that is, a forfeiture of money—or, otherwise expressed, by a fine. The phrase "any forfeiture" implies that there were more than one kind, as in truth there were; and implies, too, that the Legislature meant to make all of them triable in the court of criminal correction. When the amendatory acts were passed, fraud in office was a misdemeanor and thus punishable. Gen. Stat. 1865, p. 808, §§ 18, 19. So was the refusal of a jailer to receive a prisoner committed to his charge. Id. P. 804, §§ 43, 44. Oppression in office, though not expressly declared a misdemeanor until 1879 (R. S. 1879, § 1483), was treated as one in State v. Lawrence, 45 Mo. 492 (decided prior to that Revision), and as not triable in the court of criminal correction, solely because said court could not then try those punished by forfeitures, in the opinion the amendment of the jurisdictional clause after the case arose was noticed as conferring power to try misdemeanors followed by a forfeiture, and as an argument to show this could not be done under the original act. The court needed only to construe the first act to decide the case; but the observations made regarding the amendments show the view taken of its purpose and effect when the power of the court below to try forfeiture cases first was challenged, and show, also, that official oppression was considered a misde meanor....