The State v. Thayer

• Decision Date: 30 June 1900
• Parties: THE STATE v. THAYER, Appellant
• Court: Missouri Supreme Court

58 S.W. 12

158 Mo. 36

THE STATE v. THAYER, Appellant

Supreme Court of Missouri

June 30, 1900

Appeal from Jackson Criminal Court. -- Hon. Jno. W. Wofford, Judge. Brief of Attorney-General.

Counsel for appellant urge that because in many instances appeals have been taken from judgments of conviction on misdemeanors and the Supreme Court has passed on the cases, and the jurisdictional question has been passed sub silentio, therefore this court should hold that it now has jurisdiction. In other words, that because this court has assumed jurisdiction heretofore, that it ought not now to admit its error, but to maintain it was right by still assuming jurisdiction.

The Federal Supreme Court has had this question of jurisdiction being passed sub silentio before it, and has rendered decisions upon the effect of a court assuming jurisdiction where none existed.

In the case of Cannon v. United States, 116 U.S. 55, 118 U.S. 355, 29 L.Ed. 561, 6 S.Ct. 278, 6 S.Ct. 1064, the Federal Supreme Court, without objection, decided upon the merits of a writ of error to the Supreme Court of the territory of Utah sued out by one convicted of a crime which was neither bigamy nor polygamy, nor punishable with death but in which case the defendant below had been convicted under the statute and had been sentenced to six months imprisonment and to pay a fine. The statute under which the defendant was convicted was one directly amending the statute against bigamy or polygamy in the territory of Utah. The statute which was amended allowed an appeal on a conviction for bigamy or polygamy. The amendment to the statute created an offense described in the statute of cohabiting with more than one woman, and was not legally either bigamy or polygamy. This same statute came under consideration again in 118 U.S. 346, 30 L.Ed. 207, 6 S.Ct 1059, where the defendant had been convicted and sentenced to imprisonment for six months and fined $ 300. The question was raised that the Supreme Court had no jurisdiction because no statute expressly authorized an appeal in this class of cases. The offense of which the defendant was convicted was cohabiting with more than one woman. The statute was directed at the practice of polygamy in the territories of the United States. The statute before its amendment provided that if a defendant was convicted by bigamy or polygamy a writ of error should lie. The amendment did not take away the right of appeal in case of bigamy or polygamy. The Supreme Court held that the statutory offense described in the amendment to the statute, of cohabiting with more than one woman, was not identical with the offense of bigamy or polygamy, and although the statute authorized a writ of error to lie in case of a conviction of bigamy or polygamy, as no express statutory authority was given for an appeal under the law prohibiting cohabitation with more than one woman, therefore no appeal could be had, and the Supreme Court had no authority to entertain the appeal because it had no jurisdiction in the case.

The counsel for the appellant in that case urged that the court had taken jurisdiction of the case of the United States v. Cannon, 116 U.S. 55, 118 U.S. 355, 29 L.Ed. 561, 6 S.Ct. 278, 6 S.Ct. 1064, and affirmed the judgment of conviction under the same act of 1882, but the court said "The question of jurisdiction was not considered in fact in that case, nor alluded to in the decision, nor presented to the court by the counsel for the United States, nor referred to by either party at the argument or in the briefs . . . But as the . . . . want of jurisdiction is clear we have decided to vacate our judgment and recall the mandate and dismiss the writ of error for want of jurisdiction."

The counsel for appellant in the case at bar urge that the question of jurisdiction was not presented to the court or in the brief of counsel in the cases referred to by them which have been before this court on appeal from conviction on information, and argue, therefore, this court should be precluded from deciding now that it has no jurisdiction. But the United States Supreme Court says that the very fact that the question was not raised by counsel in argument, or in the briefs, nor in any manner called to the attention of the court, is the reason why the former action of the court in assuming jurisdiction should not be sustained, and that when the question of jurisdiction is raised the court should declare whet the law is, rather than what the counsel or the court think the law ought to be.

In the case of United States v. Sanges, 144 U.S. 310, 36 L.Ed. 445, 12 S.Ct. 609, the Supreme Court again decided that no appeal could be taken in a criminal case unless expressly authorized by a statute. The court in this case cited and approved the opinion heretofore referred to in 118 U.S. 346-354, 30 L.Ed. 207, 6 S.Ct. 1059, holding that the fact that a court may have passed upon cases in which it had no jurisdiction did not authorize it to continue to do so.

In 1803 the Federal Supreme Court, no objection being made, took jurisdiction of a writ of error sued out by the United States to the Circuit Court for the District of Columbia in a criminal case. But in 1805, in another case, the United States Supreme Court, upon full argument and consideration, held that it had no jurisdiction of a writ of error in a criminal case and overruled the case in 1 Cranch, p. 252. Chief Justice Marshall, speaking for the court, said: "No question was made in that case (referring to the case in 1 Cranch, p. 252), as to the jurisdiction. It passed sub silentio and the court does not consider itself bound by that case." [United States v. Moore, 3 Cranch, pp. 159-172; United States v. Sanger, 144 U.S. 310, 36 L.Ed. 445, 12 S.Ct. 609.]

The counsel for appellant insists strongly that in a majority of the cases that have come to this court on appeals from conviction on an information, the court did not pass upon the question of jurisdiction, and that therefore the jurisdiction exists. The question of jurisdiction has been raised in but four cases, and in those four cases it has been held that the court had no jurisdiction. The very reason counsel for appellant urge as grounds for the court's having jurisdiction now, to-wit, because its jurisdiction has been usually unquestioned, is the exact reason, the Federal Supreme Court says, why such cases acted on sub silentio as to jurisdiction are not binding on a court, and constitute no authority for sustaining jurisdiction. The case in 3 Cranch, pp. 159-172, is an authoritative declaration by the Federal Supreme Court that a court will not be bound by a case in which the question in issue is not considered by the court in deciding the case. In other words, unless a court examines and decides a question it has not judicially passed on it, and therefore, no matter how many times sub silentio a court has passed a question by, the court will not be bound by such action. The only argument appellant's counsel make in the case at bar, for the court to assert its jurisdiction and allow appeals, is, that so many times appeals have been taken from convictions on informations and the question of jurisdiction passed sub silentio, that now it is too late to raise the question. But this very fact of the jurisdictional question not being raised is the legal reason why the many cases cited by counsel for appellant are not authority to sustain the right of appeal. [United States v. Moore, 3 Cranch, pp. 159-172; United States v. Sanger, 144 U.S. 310, 36 L.Ed. 445, 12 S.Ct. 609.]

Can it be said this court has sustained the right of appeal from conviction on an information in many cases, when an examination of the very cases cited show the question was not even raised? The cases cited by counsel for appellant from the Missouri Reports to sustain the right of appeal from conviction on an information all show that the question of jurisdiction was not raised or discussed or decided by the court, and under the rulings of the Federal Supreme Court, and of all other courts so far as I am aware, if this court has erroneously entertained cases of this kind it is the court's duty to correct the mistake when its attention is directed to it. When a case arose in which a prior decision was attacked on the ground that it had no support from the cases wherein it was purported to be derived, the Supreme Court of Pennsylvania yielded, and said, in regard to the right and duty of the court to correct errors when practicable:

"Do we violate the doctrine of stare decisis by now correcting the mistake and going back to the well-established doctrine which that case has disturbed? . . . . The conservatism that would make the instance of to-day the rule of to-morrow, and thus cast society in the rigid moulds of positive law in order to get rid of the embarrassing but wholesome diversities of thought and practice that belong to free, rational and imperfect beings; and the radicalism that in ignorance of the laws of human progress and disregard of the rights of others would lightly esteem all official precedents and general customs that are not measured by its own idiosyncrasies -- each of these extremes always tends to be converted into the other, and both stand rebuked in every volume of our jurisprudence.

"And the medial aspect of the doctrine stands everywhere revealed as the only practical one. Not as an arbitrary rule of positive law attributing to the mere memory of cases higher honor and greater value than belong to the science and natural instinct and common feeling of right: Not as withholding allowance for official fallibility and for the changing views, pursuits and customs that are caused by and that indicate an advancing civilization: . . . .

"When the varied surface...