The State ex rel. Meininger v. Breuer

• Citation: 264 S.W. 1,304 Mo. 381
• Decision Date: 03 July 1924
• Docket Number: 25232
• Parties: THE STATE ex rel. ARTHUR O. MEININGER v. RANSOM A. BREUER, Judge of Circuit Court, and HOWARD SIDENER, Circuit Attorney
• Court: United States State Supreme Court of Missouri

264 S.W. 1

304 Mo. 381

THE STATE ex rel. ARTHUR O. MEININGER v. RANSOM A. BREUER, Judge of Circuit Court, and HOWARD SIDENER, Circuit Attorney

No. 25232

Supreme Court of Missouri

July 3, 1924

Motion for Rehearing Overruled July 3, 1924.

Preliminary rule discharged.

James Booth, Cole & Jenny, Harvey & Boer and Anderson Gilbert & Wolfort for relator.

(1) Sec. 3697, R. S. 1919, was construed in Ex parte Meyers, 44 Mo. 282, and the court there held that under this section a defendant could not be tried after sentence, at a subsequent term, pending the appeal. After this construction this statute was re-enacted through the revisions of 1879, 1889 1899, 1909 and 1919 without change. This rule has been affirmed and followed in: State v. Buck, 120 Mo 479; State v. Bell, 212 Mo. 130; State ex rel. Stevens v. Wurdeman, 295 Mo. 566. (2) Where the courts have construed a statute and the statute is carried forward in subsequent revisions this construction will be held to be part of the revised statute. State v. Schenk, 238 Mo. 429; Handlin v. Morgan County, 57 Mo. 116; Camp v. Wabash Railroad Co., 94 Mo.App. 272; Saunders v. Anchor Line, 97 Mo. 26; Northcutt v. Eager, 132 Mo. 265; State v. Withrow, 133 Mo. 500; C. & A. Railroad Co. v. United States, 37 S.Ct. 241; National Lead Co. v. United States, 40 S.Ct. 237; Schawacker v. McLaughlin, 139 Mo.App. 341. (3) This is emphasized by the fact that the Legislature in 1897, Laws 1897, page 71, now Sec. 4165, R. S. 1919, provided for the trial of a convicted man out on parole for the commission of an offense subsequent to his conviction or parole. The intent of the Legislature is further evidenced by provisions made by Sec. 1668, R. S. 1879 (now Sec. 2292, R. S. 1919), whereby one under sentence may be charged and tried. This statute is found as Sec. 23, Chap. 207, General Statutes 1865, and at that time provided: "The person of a convict sentenced to imprisonment in the penitentiary is and shall be under the protection of the law, and any injury to his person, not authorized by law, shall be punishable in the same manner as if he were not under conviction and sentence." See also Sec. 1668, R. S. 1879. (4) Prohibition is the proper remedy. The relator has no adequate remedy by appeal or otherwise. State ex rel. Stevens v. Wurdeman, 295 Mo. 580; State ex rel. Ore v. Latshaw, 237 S.W. 770; State ex rel. v. Jones, 274 Mo. 395; State ex rel. v. Denton, 229 Mo. 187; State ex rel. v. Henson, 217 S.W. 17; State ex rel. v. Buckner, 203 S.W. 42; State ex rel. v. Eby, 170 Mo. 497.

Jesse W. Barrett, Attorney-General, and Henry Davis, Assistant Attorney-General, for respondent.

(1) The Constitution and the statutes have given the circuit courts jurisdiction to try persons indicted for the commission of felonies. No immunity is given to a person who is under a sentence to the penitentiary. Sec. 22, art. 6, Mo. Constitution; Secs. 2436, 3365, 3974, R. S. 1919. (2) Neither the Constitution nor the statutes prohibit a circuit court from trying indictments against persons who are under penitentiary sentences for the commission of a felony. Ex parte Allen, 196 Mo. 226, 232. (3) As the petitioner has appealed from the judgment and sentence of imprisonment and has been released from custody under an appeal bond, the judgment and sentence of imprisonment is suspended. Ex parte McAnally, 199 Mo. 512. (4) The denial to the State of the right to prosecute one who is under sentence is wrong in principle. It is contrary to the great weight of authority in this country and in England. It safeguards no rights whatever of an accused, oftentimes defeats the rights of the public and might be used to the great disadvantage of the accused. Simpson v. State, 56 Ark. 8; People v. Majors, 65 Cal. 138; State v. Wilson, 38 Conn. 126; Flagg v. State, 11 Ga.App. 37; Peri v. People, 65 Ill. 17; Kennedy v. Howard, 74 Ind. 87; Huffaker v. Com., 124 Ky. 115; Rigor v. State, 101 Md. 465; Singleton v. State, 71 Miss. 782; Thomas v. People, 67 N.Y. 218; Ex parte Tranmer, 35 Nev. 56; Henderson v. James, 52 Ohio St. 242; Com. v. Rammuno, 219 Pa. 204; State v. McCarty, 1 S. C. L. 334; Brown v. State, 50 Tex. Cr. 114; Clifford v. Dryden, 31 Wash. 545; State v. Keefe, 17 Wyo. 227; Arrowsmith v. State, 131 Tenn. 480; People v. Flynn, 7 Utah, 378; Re Wetton, 1 Cromp. & J. 459; Reg. v. Day, 3 Fost. & F. 526; Ponzi v. Fessenden, 258 U.S. 263.

C. O. Pearcy for respondent Sidener.

(1) We have no statute prohibiting the trial of a person who has been sentenced to imprisonment in the penitentiary for the commission of a felony. (2) The first judicial construction of this court of Sec. 3697, R. S. 1919, was not necessary to a decision of the point at issue in the case and what was said therein was obiter dictum. The subsequent rulings as to the effect of the statute were based upon mere dictum. Ex parte Meyers, 44 Mo. 279, 282; Williamson's Case, 67 Mo. 174; Ex parte Bryan, 76 Mo. 253, 254; State v. Jolly, 96 Mo. 435, 438; State v. Buck, 120 Mo. 479, 496. (3) The soundness of the rule that a person under sentence may not be tried until discharged of the sentence has been questioned by this court. State v. Jennings, 278 Mo. 544, 551. The rule is denounced in many jurisdictions as unsound. Ex parte Lamar, 274 F. 160, 171; Re Application by Tranmer, 35 Nev. 56, 41 L. R. A. 1095; State ex rel. Stevens v. Wurdeman, 295 Mo. 566. (4) The writ of prohibition will lie only to restrain the unlawful exercise of judicial functions by an inferior tribunal and should never be directed to a prosecuting officer. The respondent circuit attorney is not attempting to usurp or to exercise any judicial functions. The only necessary respondent is the court where proceedings are sought to be restrained. State v. Elkin, 130 Mo. 90, 107.

James Booth, Cole & Jenny, Harvey & Baer and Anderson, Gilbert & Wolfort for relator in reply.

(1) Counsel for respondents are in error in asserting that our State is alone in the rule first stated in Ex parte Meyer, 44 Mo. 279, and since followed. A statute in almost the same words and to the same effect as our Section 3697 is to be found in the Penal Code of California, Section 669 thereof. It was construed by the Supreme Court of California in the case of Ex parte Morton, 132 Cal. 346, decided in 1901. In that case the defendant was convicted of assault with intent to commit murder, in July, 1890, and sentenced to imprisonment for a term of ten years. On the 7th day of August, 1890, he was found guilty of burglary and on the 9th day of August, 1890, sentenced to an imprisonment for five years "to commence at the expiration of the term of imprisonment defendant is now serving in the state prison for assault to commit murder." He claimed he had served out his first sentence and could not be compelled to serve out the second, in view of the statute. The court discharged him because sentence on the second conviction was not imposed as required by the statute. This statute is still in force in California, and is considered by the District Court of Appeals of California in November, 1919, in the case of In re Selowsky, 44 Cal.App. 421. Sec. 9527, Code of Iowa, 1919, is likewise a similar statute, as is Sec. 7201, vol. 5, Code of Tennessee. And that the power to impose cumulative punishment is one derived from statute, we respectfully refer the court to James v. Ward, 2 Metc. (Ky.) 272; Miller v. Allen, 11 Ind. 389. A statute in the very same language as our own is found in Revised Statutes of Kansas 1923, p. 982, being statute No. 62-1512. (2) Respondents urge that Section 22, Article VI, of the Constitution, and Sec. 3846, R. S. 1919, give the court the right to impose successive sentences at different terms. By the Constitution "the circuit court shall have jurisdiction over all criminal cases not otherwise provided by law," and by Section 3846, "except as otherwise provided by law, the circuit courts shall have exclusive original jurisdiction in all cases of felony." That the circuit courts have jurisdiction of felonies is clearly set forth, but how to exercise that jurisdiction is not set forth in these provisions of the Constitution and statutes. Giving the circuit courts jurisdiction does not authorize them to determine what offenses are felonies, what punishment shall be inflicted, when sentence shall be imposed, or any other matter. The mode of exercise of the jurisdiction must be found elsewhere, for these provisions are not self-executing. (a) The Constitution contains no provisions regulating the trial and sentence of one already sentenced, so no authority there is conferred. (b) The only statute authorizing the trial of one already under conviction is Sec. 3697, R. S. 1919, and that statute is exclusive upon this subject. While the circuit courts have constitutional jurisdiction in felony cases, they cannot exercise that jurisdiction in the absence of a statute creating the felony and fixing the punishment. There are no common-law felonies in Missouri. A felony is defined by Sec. 3712, R. S. 1919, and punishment for common law offenses is provided by Sec. 7049, R. S. 1919. As neither the Constitution nor the present statutes authorize trial of one under sentence for felony, where could the courts obtain such authority? Only from an act of the Legislature, and until that act is passed the courts will not usurp the legislative function. State ex rel. v. Taylor, 220 Mo. 635; State v. Snow, 252 S.W. 629; Dworkin v. Ins. Co., 226 S.W. 821.

James T. Blair, J. David E. Blair, White and Ragland, JJ., concur, Ragland, J., in a separate opinion; Graves, C. J., Walker and Woodson, JJ., dissent, Graves, C. J., and Woodson, J., in separate opinions.

OPINION

BLAIR

In March, 1923, relator was convicted of embezzlement and sentenced to the...