The State v. Schenk

• Decision Date: 19 December 1911
• Parties: THE STATE v. JOHN SCHENK, Plaintiff in Error
• Court: Missouri Supreme Court

142 S.W. 263

238 Mo. 429

THE STATE v. JOHN SCHENK, Plaintiff in Error

Supreme Court of Missouri, Second Division

December 19, 1911

Error to Knox Circuit Court. -- Hon. Chas. D. Stewart, Judge.

Reversed and remanded.

L. L Cotley for plaintiff in error.

(1) The indictment offered in evidence on the hearing of the motion to quash, was for the same offense as that charged in the information, although the punishment under the indictment may have been different from that under the information. The punishment, however, might have been the same under the indictment (Sec. 4478), as under the information (Sec. 4472). The offense was the same under both charges, that is, sexual intercourse between the same parties at the same time and place. Bouvier's Law Dictionary, Webster's Unabridged Dictionary, "Offense." The offense mentioned in the statute is the commission of the wrongful act. The punishment which the Legislature prescribes for the offense is quite a different thing. Usually and generally there are different grades of punishment provided for the same offense, but there can never be but one punishment for the same offense. Under the statute (Sec. 5055), the State was bound to elect as to whether it would proceed by indictment or information in this case. Having first instituted its procedure by indictment it was bound to pursue that method to the exclusion of the procedure by information, as long as the indictment was pending and undetermined. The record shows the indictment was pending and undetermined when the information was filed. The State was also bound to elect as to whether it would proceed under section 4478, for seduction under promise of marriage or under section 4472, for carnal knowledge. The indictment for seduction under promise of marriage was an election by the State to proceed under section 4478. It is manifest that a conviction under the charge in the indictment would have been a bar to any further prosecution under section 4472, for carnal knowledge. Wharton's Criminal Law (3 Ed.), page 257. State v. Hamey, 168 Mo. 200; State v Smith, 190 Mo. 720. It must follow that the State having elected to prosecute the defendant by indictment for seduction under promise of marrige, could not lodge another charge for the same offense by information for carnal knowledge, while the former charge was pending and undetermined. The Act of 1907 (Laws 1907. p. 243), is an amendment of said Act of 1905, making it apply to all felony cases. The amendment consists in striking out the words "capital offense," and inserting in lieu thereof the word "felony." The Act of 1905 (Laws 1905, pp. 132 and 133), is a new section requiring preliminary examinations in all capital offenses prior to filing the information by the prosecuting attorney. The Act of 1907, (Laws 1907, p. 243) is an amendment of said Act of 1905, making it apply to all felony cases. The amendment consists in striking out the words "capital offense," and inserting in lieu thereof the word "felony." The Act of 1909, Laws 1909, p. 460, expressly and specifically repeals the Act of 1905, and then enacts anew said Acts of 1905, except that the new Act of 1909, is with reference to article 2, chapter 16, R. S. 1899, whereas the section repealed had reference to article 3, chapter 16, of Revised Statutes of 1899. The reference in the Act of 1905 to "article 3" was probably intended to be to "article 2," which deals with preliminary examinations. To make this correction was probably the reason for the re-enactment of the Act of 1905. The Act of 1909 adds a proviso to the new section which was not a part of the Act of 1905. The Act of 1907, which provides for preliminary examinations in felony cases, was not repealed by the Act of 1909. The Act of 1909 recites that it repeals the Act of 1905, and to be certain that it refers alone to that act the title and date of approval of said act is set out, and then, finally, to make assurance doubly sure, it recites that it is the act as set forth on pages 132 and 133 of the Laws of 1905 that is hereby repealed. From these recitals it is manifest that the Legislature never intended to repeal the Act of 1907 by the Act of 1909. The proviso to the Act of 1909 is further evidence that it was not intended to repeal the Act of 1907. These two acts are not inconsistent with each other; and can be so construed as to permit both to stand. Evans v. McFarland, 186 Mo. 723; State ex rel. v. Wilder, 197 Mo. 27. The two statutes should be so construed as that both may stand if possible. Manker v. Faulhaber, 94 Mo. 439; State ex rel. v. Walbridge, 119 Mo. 383; State ex rel. v. Wells, 210 Mo. 620; State ex rel. v. Rinke, 140 Mo.App. 662. (3) The Act of 1909, Laws 1909, p. 460, is a part of the Revised Statutes of 1909, section 5056; was enacted as a revision bill and, consequently, did not take effect until November 1, 1909. The Act of 1907 was, therefore, in force in any event, until said Act of 1909 went into effect November 1, 1909, as a part of the revision. In that view, the defendant was entitled to a preliminary examination prior to the filing of the information against him, September 21, 1909. The Revised Statutes take effect by reason of declaratory act, Sec. 8094, R. S. 1909, on November 1 of the year of the revision session. Haskel v. Sells, 14 Mo.App. 91; Hausen v. Insurance Co., 66 Mo.App. 29; Westport v. Smith, 68 Mo.App. 63; Whitaker v. Insurance Co., 133 Mo.App. 664; State v. Brassfield, 81 Mo. 151; State ex rel. v. Edwards, 136 Mo. 360. The Act of 1909 as found on page 460, Laws 1909, is simply a revision of the statute in relation to preliminary examinations, and the time it shall take effect and go into operation must be governed by section 8094 of the declaratory act. The Legislature may provide that laws shall take effect at a date later than the ninety days fixed by the Constitution. State v. Orrick, 106 Mo. 117. (4) The court erred in permitting the prosecuting witness to testify, against the objections of the defendant, that she was seduced by the defendant under promise of marriage. It was evident that the prosecuting witness had materially weakened the State's case, on her cross-examination, by admitting she voluntarily went to the defendant's house twice and had sexual intercourse with him. It was to counteract this damaging testimony, that caused the State to bring out evidence of a prior promise of marriage. The evidence of a promise of marriage was incompetent, because it had no tendency to prove the charge for which the defendant was being tried under the information. State v. Pruett, 144 Mo. 92. The court admitted the evidence of a promise of marriage, and in so ruling said he did not want it to be considered as evidence of a promise of marriage. In the case of State v. Minor, 193 Mo. 597, illegal testimony was introduced and was ordered by the court to be stricken out. This court said that was not sufficient. An instruction to exclude illegal evidence admitted in a criminal case will not cure the error of admitting it, if it was of a character prejudicial to the defendant. State v. Mix. 15 Mo. 153; State v. Hopper, 71 Mo. 425; State v. Fredericks, 85 Mo. 145; State v. Huehner, 93 Mo. 193; State v. Thomas, 99 Mo 235; State v. Spivey, 191 Mo. 87; State v. Martin, 229 Mo. 641. (5) The court erred in overruling defendant's demurrer to the evidence, offered at the close of all the evidence in the case. (6) The court erred in giving instruction numbered one on the part of the State. This instruction was copied from State v. Knock, 142 Mo. 515, but the facts in that case are radically different from this case. It directed the jury to find defendant guilty if at any time in three years next before the 21st day of September, 1909, the defendant did feloniously assault and carnally know the witness, etc. In the Knock Case the State relied on five different acts of carnal knowledge, any one of which, according to the record in that case, would have been sufficient to have justified a conviction. In other words, it was not a case in which the State was limited to the date alleged in the indictment. In the case here the proof was limited to the date alleged in the information. It was that date or nothing, according to the evidence, and, hence, the instruction should have been confined to the date alleged in the information. The instruction was a roving commission to find the defendant guilty without regard to the evidence in the case. The case having been tried solely with reference to the date alleged in the information, the defendant could not ask the State to elect because there was no conflict as to other dates testified to. This instruction was too broad, under the evidence in this case, and was, therefore, prejudicial. Under said instruction the jury was authorized to convict the defendant "on general principles." State v. Palmberg, 199 Mo. 248; State v. Pruitt, 202 Mo. 52.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for defendant in error.

(1) Appellant's counsel filed motion to quash on the ground that an indictment for the same offense was pending at the time the information was filed, and that appellant was not accorded a preliminary hearing prior to the filing of the information. The first ground is based upon the clause in Sec. 2576, R. S. 1899. The indictment offered in evidence in connection with the motion was for a wholly different offense. The information here was drawn under Sec. 1838, R S. 1899, as amended (Laws 1907, p. 230), and the indictment offered in evidence was drawn under Sec. 1844, R. S. 1899. The elements of the offenses defined by these two sections are different from each other in material respects. The punishments prescribed differ. The evidence which would...