The State v. Hamey

Decision Date29 March 1902
Citation67 S.W. 620,168 Mo. 167
PartiesTHE STATE v. HAMEY, Appellant
CourtMissouri Supreme Court

Appeal from Buchanan Criminal Court. -- Hon. B. J. Casteel, Judge.


Culver & Phillip for appellant.

(1) The indictment is bad for the reason that section 1838, Revised Statutes 1899, upon which it is based, is unconstitutional in that it deprives the accused of the right of trial by jury as guaranteed by section 28, article 2, Constitution of Missouri. The right of trial by jury at common law meant that one part of the jury's duty was to return into court a verdict, if they found defendant guilty, assessing his punishment as provided by law, or a general verdict of guilty, and thereupon the court fixed his punishment. Blackstone, Com., book 4, p. 361. But when Missouri entered the Union as a State she modified by statute the common-law duty of the jury by requiring it to return into a court a verdict, if they found the defendant guilty, assessing his punishment within the limits prescribed by the law; and only in the event that the jury could not agree on the punishment or made a mistake in the degree of punishment could the court fix the punishment. This continued to be the law and practice till the adoption of the Constitution of 1875. R. S. 1845 sec. 4, p. 883; R. S. 1855, sec. 4, p. 1196; G. S. 1865, sec 5, p. 858; W. S., sec. 5, p. 1108. The Constitution of this State of 1865 provided only that "the right of trial by jury shall remain inviolate." But when the Constitution of 1875 was adopted, for the first time it was provided that the "right of trial by jury as heretofore enjoyed shall remain inviolate." Const., sec. 28, art. 2. This means, if it means anything at all, the right of trial by jury as enjoyed in this State at the time of the adoption of the Constitution. State v. Bockstruck, 136 Mo. 358; Ice Co. v. Tamm, 138 Mo. 385; 1 Bishop Crim. Proc. (3 Ed.), 892; Flint, R. S. B. v. Foster, 48 Am. Dec. 260; Same v. Roberts, 48 Am. Dec. 178. But the duty of the jury in all felony cases, without exception, prior to the adoption of the present Constitution, was to assess the punishment. The court could not require a general verdict of guilty. Fooxe v. State, 7 Mo. 502. Therefore, section 1838, Revised Statutes 1899, is unconstitutional because it allows the jury to return into court a verdict of guilty only, and takes from it the duty of assessing the punishment, and reposes it in the court. R. S. 1899, sec. 1838. The right to trial by jury, as heretofore enjoyed, shall remain inviolate, is the constitutional provision. "The right is to remain. What right? Plainly the right as it existed before, the right to a trial by jury as it had become known to the previous jurisprudence of the State. The right is not described here; it is not said what shall be its incidents; it is mentioned as something well known and understood, under a particular name; and by implication at least, even a waiver of its advantages is forbidden. If the accused himself can not waive them, plainly the Legislature can not take them away. The next section of the Constitution repeats the guaranty of this method of trial 'in every criminal prosecution,' and nothing is better settled on the authorities than that the Legislature can not take away a single one of its substantial and beneficial incidents." Swart v. Kimball, 43 Mich. 448. (2) Nor can it be said that the constitutional provision does not apply to the offense charged in the case at bar because the statute creating it was passed after the adoption of the Constitution. The offense is a felony, and the constitutional provision applies to all felonies. Wynehamer v. People, 13 N.Y. 426; Colon v. Lisk, 60 Am. St. 611. (3) Nor can it be urged that though that portion of the statute which prescribes that the court shall fix the penalty is void, it is separable from the remainder of the section, which, therefore, should be held valid. State v. Bockstruck, 136 Mo. 353; Landis v. Vineland, 54 N. J. L. 75. (4) And the act is also void because it violates paragraph 17 of section 53 of article 4 of the State Constitution providing that "the General Assembly shall not pass any local or special law regulating the practice or jurisdiction of or changing the rules of evidence in any judicial proceeding or inquiry before the courts." State v. Granneman, 132 Mo. 326.

Edward C. Crow, Attorney-General, for the State.

(1) The indictment in this case is sufficient. State v. Knock, 142 Mo. 522; State v. Burries, 126 Mo. 565. (2) The statute is constitutional. The defendant's counsel make the objection to the constitutionality of section 1838, Revised Statutes 1899, that it deprives the accused of the right of trial by jury, because it authorizes the court to assess the punishment. This proposition is grounded upon the theory that when the Constitution was adopted in 1820, providing in section 8 of article 13, "That the right of trial by jury shall remain inviolate," it meant only the right of trial by jury as provided by the territorial laws then in force, and not the right of trial by jury as it existed at common law. State ex rel. v. Withrow, 133 Mo. 501; 130 U.S. 69; Cooley's Const. Lim. (6 Ed.), 504. The assessment of punishment by jury is not an essential element of right of jury trial at common law. Cooley's Const. Lim. (6 Ed.), pp. 389, 390, 391, 392. The essential elements of right that went to make up a jury trial at common law were neither added to nor detracted from by the constitutional guarantee that the right of trial by jury should remain inviolate. 41 Me. 533; 1 Bishop's Crim. Law (8 Ed.), sec. 934. The common-law jury trial was intended to be preserved by the Constitution, and it is beyond the power of the General Assembly to impair the right or materially change its character. 133 Mo. 519; 55 N.H. 179; 48 N.H. 64; 74 N.Y. 406; 2 Ohio St. 229. One of the characteristics of the jury trial at common law was that usually the jury simply determined the fact of guilt or innocence and the court assessed the punishment. 1 Bishop's Criminal Law, sec. 934. Suppose that in certain classes of felonies the territorial statutes had provided that the courts should assess the penalty, would it be contended that after the adoption of the Constitution the General Assembly could not provide by statute that the jury should find the facts and assess the penalty? This very question has been passed upon, and it has always been held that such statutes are constitutional. 21 Mo. 269; 22 Mo. 320; 1 Bishop's Crim. Law. sec. 934; 7 Ind. 332; 70 Iowa 442. It is constitutional to divide the responsibility of the assessment of the punishment between the judge and jury. 22 Mo. 320; 1 Bishop's Crim. Law, sec. 934.

GANTT, J. Robinson, Brace and Valliant, JJ., concur in toto; Burgess, C. J., concurs in the opinion as to the law of the case, but thinks the judgment should be reversed and the cause remanded for further trial upon the ground of the want of substantial evidence to sustain the verdict; Sherwood and Marshall, JJ., dissent, and express their views in a dissenting opinion by Sherwood, J. Marshall, J. dissenting.


In Banc


The defendant was indicted in the criminal court of Buchanan county for a violation of section 1838, Revised Statutes 1899, which was enacted April 8, 1895. [Laws 1895, p. 149.]

That act provides that "if any person over the age of sixteen years shall have carnal knowledge of any unmarried female, of previously chaste character, between the ages of fourteen and eighteen years of age, he shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for a term of two years, or by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than one month or more than six months, or by both such fine and imprisonment, in the discretion of the court."

The defendant was duly arraigned and entered his plea of not guilty.

At the November term, 1901, of said court, he was tried by a jury duly impaneled, which returned the following verdict: "We the jury find the defendant guilty and assess his punishment at imprisonment in the county jail for a term of one month and a fine of five hundred dollars."

And his motions for new trial and in arrest having been overruled, the court sentenced the defendant to imprisonment in the county jail for one month and to pay a fine of five hundred dollars.

From that sentence he appeals.

On a hearing of said appeal in Division Two the judgment of the criminal court was reversed, but one of the judges dissenting, the cause on motion of the Attorney-General was ordered transferred to the Court in Banc, and it has been again argued at length.

I. When the cause was reversed in Division Two of this court it was accompanied with an order of discharge. After the order was made transferring the cause to the Court in Banc, the defendant filed his motion to strike the same from the files, because, as he alleged, the Constitution did not confer upon the Attorney-General the right to have said cause transferred after a judgment by Division Two in favor of defendant's discharge.

The argument is that as the State is not entitled to an appeal or to a review of a judgment rendered in the trial court except in those instances expressly allowed by statute, it follows that it can have no right to have the judgment of an appellate court reviewed unless that right be expressly given.

This contention ignores the amendment to the Constitution of this State which was adopted at the general election in November 1890. Section one of that amendment confers exclusive cognizance of all criminal cases pending in the Supreme Court upon Division Two...

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