« AnteriorContinuar »
teen no conviction of defendant in Arkansas; witnesses, and nothing to induce the jury to Lence no reversible error can be predicated believe there were. Read as a whole, and upon the cross-examination aforesaid. Nei. considered altogether, the instruction conveyDer Fas there any error in giving the instruc- ed simply the idea that it was not necessary, tion No. 6. We do not think it can fairly in order to convict, that his guilt should be be considered as referring to a conviction in established by direct evidence, but may be any other criminal offense than the misde- shown by proof of facts and circumstances reador which had occurred some 25 years from which no other reasonable conclusion previously in St. Louis, and the court care- than his guilt could be reached. The other fully and properly restricted the evidence of instructions in the case, together with this the conviction of a misdemeanor to the one fourth instruction, fully and fairly covered purpose of affecting the credibility of the all the propositions of law arising in the case, defendant as a witness, and forbade the jury and left nothing more to be desired. coosidering it upon the question of his guilt We have gone carefully through the record of the crime for which he was being tried. in view of the serious charge against the deThis instruction was manifestly given as a fendant, and our conclusion is that he has protection to the defendant, and it could not had a fair and impartial trial, and that the bare operated otherwise.
sentence which the law pronounced must be 3. Objection is also made to the fourth in- executed; and it is so ordered. struction. That instruction is in these words: "You are instructed that it is not necessary FOX, J., concurs. BURGESS, P. J., abto prove the defendant is guilty by the tes- sent, sick tinoay of the witnesses who may have seen the offense committed. Guilt may be shown by proof of the facts and circumstances from which it may be reasonable and satisfactorily
STATE ex rel. GOODNOW V. POLICE inferred. In determining whether the de
COM'RS. fendant is guilty or not, you should take into (Supreme Court of Missouri. April Term, cosideration all the facts and circumstances
1904.) in evidence, the acts and conduct of the de- Dissenting opinion. feadant, and his motive, if any, for doing or For majority opinion, see 71 S. W. 215. Dot doing the act charged as shown by the evidence: and if you find from all the facts VALLIANT, J. For the following reasons and circumstances in evidence that there is
I am unable to concur in opinion of the court no other reasonable conclusion than that he is in this case: guilty. you will so find; but to convict The act of 1874 (Laws 1874, p. 327) looks the defendant on circumstantial evidence
to the appointment and maintenance of a alone the circumstances proven must be con- permanent police force for Kansas City. It sistent with one another, and must, taken to prescribes the numerical standard of the gether, point so conclusively to his guilt as force, or, rather, a rule by which the numerto exclude every reasonable hypothesis of his ical strength shall be measured. That nuinnocence." That part of the instruction merical standard once established, it is the complained of is as follows: "You are in- duty of the board of police commissioners to structed that it is not necessary to prove the keep the force up to it until the same is redefendant guilty by the testimony of the wit- duced according to law. The power to inDesses who may have seen the offense com- crease the number is given to the common mitted" The argument of the defendant is council on the recommendation of the board that this is an implication that eyewitnesses of police commissioners, and in the same saw the defendant commit the crime, but in sentence the power is given the commissionthis case it was not necessary to bring them ers to reduce the force. The fixing of the into court. We can but regard this as a numerical standard in the first place, its instrained and hypercritical criticism of the in- crease and its reduction, are all treated by struction. If the article “the” before the the Legislature in one breath, as it were, word "witness" had been omitted, there and are all intended to apply to the one obcould not possibly be any valid objection to ject—that is, the general standard of the the instruction. It would then have told the force and they have no relation to the apjury that it is not necessary to produce direct pointment or the discharging of individuals. and positive evidence to convict one charged In the exercise of the authority conferred in with crime, but that it is sufficient if facts that sentence, the governmental agency to and circumstances are proven from wbich no whom it is intrusted would say: The police otber reasonable conclusion than the guilt of force for Kansas City shall consist of so the accused can be reached. The argument many officers and so many men; or it would of the defendant against this instruction say the force shall be increased to so many sould be just as forcible if the word "the" men, or that it be reduced to such a number, bad been omitted, because the inference that In the exercise of the power conferred in there were eyewitnesses, according to defend- that sentence the government agency apant's construction of the instruction, would points no one; neither does it discharge any still remain. In this case there were no eye- one. The power there conferred is rather in the nature of legislative than executive func- sioners, under the name of reducing the tion. It prescribes the standard of strength, force, have the power to discharge an indibut does not appoint to the office.
vidual, of what value is the clause in the The language of the act is: “Sec. 6. To statute saying that a policeman shalı not be enable said board to perform the duties im- discharged except for cause after trial? If posed upon them, they are hereby authorized the construction given the clause conferring and required, as speedily as may be, to ap- the power to reduce the force by the majorpoint, enroll and employ a permanent police ity opinion is correct, then the policeman is force for the City of Kansas, which they absolutely at the mercy of the board of comsball equip and arm as they may judge nec- missioners, and the clause essaying to give essary.” So far the act confers only power him a right to serve his term unless upon to appoint, equip, etc., the duty there pre charges and conviction is set at naught. scribed is purely of administrative charac- It is a rule that a statute should be so ter, and it does not leave it to the commis- construed as to give effect to all its parts if sioners to say of what number the police possible. If we construe the clause empowforce shall consist, but the number or stand- ering the board of commissioners to reduce ard of measure is elsewhere in the act fix- the force to mean that it may by resolution ed, and until it is altered the police commis- or other proper form say, in effect, that heresioners cannot lawfully refuse to appoint after the police force shall consist of only that number.
80 many men in the same way that the comThen follows a new sentence: “The num- mon council may say that it shall be increasber of policemen to be so appointed and em- ed to so many men, then it is in perfect harployed, exclusive of officers, shall, at the first mony with the clause conferring on the poorganization, be not exceeding the number liceman the right to remain for his term, unnow employed by the corporate authorities less dismissed for cause after due trial. of the City of Kansas; but the common In my opinion the relators were unlawcouncil of said city shall have the power to fully discharged, and they are entitled to the increase the police force at any time to any relief prayed. number recommended by the board of police commissioners; and said commissioners may reduce the present or any future number of
STATE ex rel. CHICAGO, B. & Q. R. CO. police, as experience may warrant." In that
V. BLAND et al., Judges (two cases). sentence the power is given to the common council, on recommendation of the board, to
STATE ex rel. CHICAGO & A. RY. CO. V.
SAME. increase, and to the board to reduce, the number of the force. The power committed (Supreme Court of Missouri. June 1, 1905.) to the council is of the same nature as that 1. CIVIL CONTEMPT_RIGHT OF APPEAL. committed to the board-the one to increase,
Under Rev. St. 1899, 8 2696, declaring that
in all cases of final judgment rendered upon any the other to reduce. Surely it was not in
indictment an appeal to the Supreme Court tended to give the council the power to in- shall be allowed the defendant if applied for crease by adding certain individuals of its during the term at which such judgment is renselection to the force; no more can it be
dered, a complaint informing the court of the
violation of an injunction is not an information said that it was intended to give the board
or indictment, and a judgment rendered therepower to reduce by discharging individuals. on is not appealable under the section cited. It meant that the council by ordinance 2. SAME_FINAL JUDGMENT. should have the power to say that hereaft- Certain ticket brokers were enjoined from
dealing in the return-trip part of a certain class er the police force of the city shall contain
of railroad tickets. They violated the injuncso many men, and in like manner the board
tion by selling some of such tickets, and comshall by resolution say that hereafter the plainants in the injunction suit instituted proforce shall consist of only so many men.
ceedings to have them punished for contempt.
Rev. St. 1899, § 806, provides that any party The power conferred by the act is of the
aggrieved by any judgment in any civil cause same nature in each case, and is to be exer from which an appeal is not prohibited by the cised in the same or similar manner.
Constitution may appeal from any final judge
ment in the case. Section 1616 provides that Further down in the same section is this:
every court of record shall have power to pun“The policemen shall be employed to serve ish as for a criminal contempt willful disobefor three years, and be subject to removal dience of any process or order. Section 1617 only for the cause after a hearing by the
limits the punishment which may be inflicted
for contempt, and the following section proboard, who are hereby invested with exclu
vides that contempts committed in the pressive jurisdiction in the premises.” That sen- ence of the court may be punished summarily, tence is emphatic and its object cannot be but in other cases the party charged shall be
notified of the accusation, and have a mistaken. It is designed to confer an im
sonable time to make his defense. Held, that portant and valuable right on the policemen. the order adjudging the brokers guilty of conThe right there conferred is not visionary, tempt was a final judgment in a civil cause, but very substantial. It means that the po
appealable under section 806. liceman does not hold his office at the mere In Banc, Three separate proceedings in prowill of the commissioners, and it means that bibition by the state on the relation of the they shall not discharge him except for Chicago, Burlington & Quincy Railroad Comcause, after due trial. But if the commis- pany, the Chicago & Alton Railway Com
pany, and the Chicago, Burlington & Quincy court to be informed of divers and sundry Railroad Company against Charles C. Bland specific instances of violations of said orders and others, as the judges of the St. Louis in names, tickets, dates, and amounts, and Court of Appeals, to prevent respondents prayed the court to make an order requiring from proceeding further with appeals to the said Schubach and Gildersleeve to appear and court mentioned from orders adjudging Her- show cause why all and every of them should man Schubach and another guilty of con- not be punished for contempt of court in viotempt in disobeying an injunction issued in a lating said injunction. Thereupon Gildersuit by relators against said Schubach and sleeve and Schubach were ordered cited to apotber. Preliminary rule discharged and appear and show cause, and they appeared writ denied.
and filed returns through counsel. ThereJohnson, Allen & Richards and Martin L.
upon the matter of said complaints, citations, Clardy, for relator Chicago, B. & Q. R. Co.
and returns came on for hearing, and there
after the court entered its judgments, finding Edward S. Robert, Douglas W. Robert and
and adjudging Schubach and Gildersleeve Martin L. Clardy, for relator Chicago & A. Ry. Co. Chester H. Krum, Edward J. O'Bri
guilty of contempt and adjudging Gilder
sleeve in one case to be committed to and be ED, and Henry W. Bond, for respondents. Mc
imprisoned in the common jail in the city of Keigban, Wood & Watts and J. M. Dickinson,
St. Louis for a period of 30 days from 2 amici curiæ
o'clock p. m. on the 2d day of August, 1904,
until 12 o'clock p. m. on the 1st day of SepLANM, J. In 1903 the Burlington Com- tember, 1904, or until he be discharged acpang commenced two proceedings in equity in cording to law; and in the other case adjudgthe circuit court of St. Louis, one against ing him to pay to the sheriff of the city of St. Schubach and one against Gildersleeve, and Louis for the use of the public schools the the Alton Company also commenced in said sum of $300, together with the costs incurred court its proceeding in equity against Gilder- in the proceeding, before the 1st day of Ocsleeve, tbe life of each bill being for injunc. | tober, 1904, and, if said fine and costs be not tre relief restraining said Schubach and Gil- paid by the 1st day of October, 1904, that the dersleere from dealing in the return-trip part body of said Gildersleeve be attached by the of a certain class of railroad tickets issued said sheriff, and that said Gildersleeve be sererally by relators to accommodate travel committed to and imprisoned in the common to and from the Louisiana Purchase Exposi- jail in the city of St. Louis for a period of tion at St. Louis, and sold at reduced price | 30 days from the 1st day of October, 1904, or in consideration of being nontransferable. until he shall be discharged according to law; See a case on all fours, Schubach v. McDon- and in the other case adjudging Schubach to ald, 179 Mo. 163, 78 S. W. 1020, 63 L. R. A. pay a fine of $250 and the costs of the pro136, 101 Am. St. Rep. 452, where the aver- ceeding, to be paid to the clerk of said court Dents and a copy of a similar bill are set forthwith to the use of the public schools, forth with particularity. Such proceedings and, if said ine is not paid forthwith, then were bad in each of said causes as result. the said Schubach to be committed to and ed in temporary restraining orders against imprisoned in the common jail in the city of said defendants severally. While said tem- St. Louis until such fine is paid; and further porary injunctions were in force, and after adjudging said Schubach to be committed to they had been served upon defendants, plain and imprisoned in the common jail in the tifs in said suits, relators here, in their own city of St. Louis for a period of 10 days, or several names and through their own counsel until he shall be discharged according to law filed in said circuit court during its June -execution being stayed until October 2d. term, 1904, verified complaints in said caus- Afterwards proceedings were had in all said es, causing the court to be informed that said contempt cases, whereby the Honorable Gildersleeve and Schubach, after injunction Charles C. Bland, one of respondents, as a bonds filed and approved, and after service of judge of the St. Louis Court of Appeals, the preliminary restraining orders, violated granted appeals to the St. Louis Court of the terms thereof by carrying on the business Appeals, approved recognizances tendered, of ticket brokerage by buying, selling, and and stayed all proceedings pending said apdealing in World's Fair mileage, excursion | peals. Thereupon relators filed here their and passenger tickets and return coupons three several suggestions for prohibition in thereof, and commutation passenger tickets substantially common form, setting forth the or return coupons thereof, which were and pendency of the injunction proceedings in the bad been issued by the plaintiffs severally for St. Louis circuit court, the issue of the tempassage over their respective railroads, which porary restraining orders, the filing and apsaid tickets were sold below regular sched-proval of the injunction bonds, the service of ule rates and under contracts with the orig. the restraining orders, the complaints causinal purchasers entered upon such tickets | ing the court to be informed of the violation and signed by the original purchasers mak- of said orders, the citations and rules to show ing them noptransferable and void in the cause, the returns to said rules, the bearings bands of any other person than such original had thereon in said circuit court, the several purchasers. Said complaints also caused the judgments finding said Schubach and Gilder
sleeve contemners and adjudging fines and of the case to state the several contentions of imprisonments against them, the granting of counsel thus: By relators' counsel proper it appeals by Judge Bland, and then (selecting is contended that not only is there no statute one as a sample of all) the petition proceeds allowing a contemner an appeal from a judgas follows, in part: “Said petitioner further ment finding him guilty of contempt, but that, states that the proceedings instituted as if such statute exist, it is unconstitutional, aforesaid by the Honorable Charles C. Bland, in that by submitting such matter to review Richard L. Goode, and Albert D. Nortoni, in another court it would impinge upon the judges as aforesaid, of the St. Louis Court of inherent common-law power of a superior Appeals, are a direct encroachment upon the court of record to punish for contempt. By authority and jurisdiction of the circuit court one of the counsel appearing amicus curiæ of the city of St. Louis, in that no appeal was it is conceded that a statute allowing an apallowable from any order in contempt there peal in such case would be constitutional, but of, or committing any person for contempt of it is contended that no such statute exists court in disobeying an order of said St. Louis in this state. By respondents' counsel it is circuit court, and that under the Constitution conceded that the right to an appeal, if any, and the laws it is made the care of this court must be spelled out in the statute; and it is that the said Hon. Charles C. Bland, Hon. contended that when such right is so located Richard L. Goode, and Hon. Albert D. Nor- no constitutional or inherent right in a lower toni, judges of the St. Louis Court of Appeals court is interfered with in giving it force; aforesaid, and the said St. Louis Court of and, furthermore, respondents' counsel put Appeals, keep within the bounds and limits their finger on statute law, which they insist of the jurisdiction prescribed to them by the grants the right to appeal. laws of the state; and that the St. Louis Contempts have been divided into civil Court of Appeals has no jurisdiction in said and criminal, into direct and constructive, matter, for the reason that there is no law into contempts which affect alone the dig. providing for an appeal from a judgment for nity of the court and those which affect the contempt.” On the filing of said petitions for beneficial rights of a party litigant, and there prohibition and an exhibition here of exem- is a class of contempts in which both eleplifications of the records of the Circuit Court ments appear.
There are many contempts and of Judge Bland's orders granting ap- which are punishable as crimes malum in peals, this court issued a preliminary rule to se, and others malum prohibitum, and which show cause in each case. Thereafter re- are of such a dual sort as to subject to punspondents filed their returns to said rules ishment by distinctively criminal process as in common form as follows: "Now come well as by contempt proceedings. In many Charles C. Bland, Richard L. Goode, and Al- cases contempts are designated as "criminal" bert D. Nortoni, and, making return to the where an attempt at classification may not writ of prohibition herein, show unto the have been in mind, but the court had in court here that in the matter concerning view, by the use of the word, merely an which they have been cited to appear they epithet which might fill a wholesome office proceeded with and were proceeding in the as a deterrent. An examination of the auproper exercise of the appellate jurisdiction thorities will show that the line of demarin such matters conferred upon them by law, cation between the different classes of conand that there is no valid reason in law why tempts is often shadowy, and does not run the rule heretofore made upon them should true, and that the learning on the question be made absolute. Wherefore they pray that abounds with fine as well as superfine disthe said rule may be discharged." The caus- tinctions. It will be found, further, that the es were heard together in this court, were earlier decisions in some of the states re argued orally by distinguished counsel with lating to the right of review in an appellate candor and ability, and submitted on briefs, court in contempt cases have been somewhat in which the only question presented is modifi by a judicial inclination towards whether a judgment of a superior court of discovering reasons in favor of review in record, fining and imprisoning a defendant constructive or indirect contempts. It will for violating a temporary injunction, is ap- be found, too, that the earlier doctrine of pealable.
the Supreme Court of the United States, deIf such judgment be not appealable, then nying the right of appeal or writ of error in the attempt of the St. Louis Court of Appeals contempt cases, has been modified by express to draw to itself jurisdiction is in excess of statute, and this modification has been recogits power, and the writ will lie. If, per con- nized, and the statutes given effect, in the tra, such judgment be appealable, then the later decisions of that tribunal. It will be St. Louis Court of Appeals has jurisdiction, found, also, that where no statutory right and is proceeding within the constitutional of appeal exists or writ of error lies, appel. orbit of its power, and the writ will not lie. late courts have been astute and diligent in This court, ex gratia, permitted the Illinois granting relief by inspecting records under Central Railroad Company, through its coun- writs of certiorari or habeas corpus. See, sel, McKeighan, Wood & Watts, to appear, for instance, Ex parte O'Brien, 127 Mo. 477, file a brief, and argue orally, amici curiæ. 30 S. W. 158; State v. Leftwich, 41 Minn,
It may simplify and aid the consideration 42, 42 N. W. 598; In re Watts & Sachs, 190 And,
C. 8. 1, 23 Sup. Ct. 718, 47 L. Ed. 933.
mon-law sense. Ex parte Slater, 72 Mo. 102; Lastly
, it will be found that the right of ap- State v. Kelm, 79 Mo. 515. In the Kelm peal bas been granted in many states of this
Case it was held that the term 'information,' l'nion in indirect contempt cases, and that as used in article 2 of section 12 of the state Do respectable authority exists expressly de. Constitution of 1875, was to be understood claring such statutes unconstitutional, in- in its common-law sense; that is, a criminal operative, or void, although the point has
charge which at common law is presented by been many times pressed by ripe counsel be- the Attorney General, or, if that office is fore great judges.
vacant, then by the Solicitor General of EngAuthorities covering the whole range of land, and in this state by the prosecuting the common and statute law on the subject attorneys of the respective counties, who of contempts have been industriously collated exercise the same powers as are exercised bir munsel, and may be found cited in their by the Attorney General or Solicitor General briels . In may be possible the last word has
of England—that is, the power to present in. not been spoken, but it would not advance formations under their official oaths.” It is ang interest of the science of jurisprudence obvious that by no sort of allowable legal to now assume the bootless task of undertak- construction can the complaints in these casing to distinguish the cases, to discriminate es informing the court of the violations of between them, or strive to harmonize them, its injunctions (loosely termed "informasben possible, or point out their discordant tions," and colloquially spoken of as such) notes. It is settled law that every consti- be read to mean “informations" or "indict. tutional court of common-law jurisdiction ments" under the foregoing definition and has the inherent power to punish for con- the precision satisfactory to the legal mind, tempt, and cannot be shorn of such power by and it follows that, if the proceedings against statute. It is settled law that contempt cas- Gildersleeve and Schubach are to be consides are sui generis, that one court may not ered criminal cases in the technical sense, try a case of contempt against another, that then, whatever their remedy, it cannot be by contempt proceedings are summary, that appeal. there is no constitutional right to trial by But this view falls short of disposing of jury, and that no change of venue will lie. the matter. Turning to the statute upon civil But the right to have a review of a con- appeals (section 806, Rev. St. 1899), the perriction for indirect contempt, committed by tinent part reads: "Any party to a suit agdisobeying an order made in a pending civil grieved by any judgment of any circuit court case and punished in a lower court, by appeal in any civil cause from which an appeal is or writ of error, is a different proposition, not prohibited by the Constitution, may take and one by no means new in Missouri. In his appeal to the court having appellate juconsidering it, it may be assumed as elemen- risdiction, from
or from any final tary that the right of appeal in civil cases judgment in the case.
And the did not exist at common law, and is a mere question at once arises whether the character creature of statute; and this is true of the of the judgments against Gildersleeve and right of appeal in criminal cases as well. Schubach will permit them to be brought State v. Thayer, 158 Mo. 36, 58 S. W. 12. within the letter and spirit of said section. The statute providing for appeals in criminal If they cannot be, it unerringly results that cases (section 2696, Rev. St. 1899) reads: "In no right of appeal exists. The subject of all cases of final judgment rendered upon any contempts is recurred to in more places than Indictment, an appeal to the Supreme Court one in our statutes, and provisions relating shall be allowed the defendant, if applied to the same are practically as old as the for during the term at which such judgment statutes theniselves. In the act regulating is rendered.” It will be seen at a glance the granting of injunctions, passed in Febthat an appealable judgment in a criminal ruary, 1825 (Rev. Laws Mo. 1825, p. 441, 8 6). case is limited to a final one, and to one the following appeared: “Sec. 6. Be it furrendered upon an "indictment.” This sec- ther enacted, that if any person, against tion was held not to allow an appeal from a whom a writ of injunction shall be issued, final conviction on an information. State v. shall, after the service thereof, be guilty of Brown, 153 Mo. 578, 55 S. W. 76. Subse- a disobedience to and a breach of the said quently the latter case was overruled in banc injunction, it shall be lawful for the judge State v. Thayer, supra), in which it was granting the same, or if the same were beld that the above section, read with other granted in open court, then for any judge of sections of the Code of Criminal Procedure, that court, in vacation, to issue an attachshould be construed as allowing an appeal trom a conviction on an information. Now,
ment against the said person for a contempt;
and upon his being brought before the said is repeated adjudications we have defined the word "information" as used in our Con
judge, unless he shall disprove or purge the
said contempt, the said judge may, in his stitution and laws. See, for example, State discretion, commit him to gaol until the sit1. Kyle, 166 Mo. 287, 65 S. W. 763, 56 L. R. A. 115, in which we said: “The terms 'infor
ting of the court in which the said injuncnation' and 'indictment,' as used in the Con
tion is pending, or take bail for his appear
ance in the said court at the next term there. stitution, are to be understood in their com- of, to answer for the said contempt, and