State v. Warnke , 48 Mo. 451 ( 1871 )

Currier, Judge,

delivered the opinion of the court.

At the December term, 1869, of the Hannibal Court of Common Pleas, various indictments were found against the defendant for selling liquor on Sunday. At the succeeding June term, 1870, the defendant, attended by his counsel, appeared in court and pleaded guilty to some of the indictments, while others were dismissed by consent at his cost. This was done, as the record shows, under an arrangement with the prosecuting attorney to the effect that the cases should be so disposed of. In the cases where a plea of guilty was entered, a small fine was imposed and final judgment rendered. This writ of error is prosecuted to reverse these several judgments. The reversal is sought upon the ground that the court rendering the judgments acted without jurisdiction.

In State v. Huffschmidt, 47 Mo. 73, it was decided that the statute authorizing the prosecution of misdemeanors of this class by indictment had been repealed, and that the proper remedy in such cases was by civil action under the statute (Wagn. Stat. 516, §§ 29, 32). The plaintiff in error relies upon that adjudication as decisive of the question of jurisdiction sought to be raised upon this record. Treating the question as one involving the jurisdiction of the 'court, authorities are cited in extenso to show that objections to the jurisdiction cannot be waived. But the real objection here is to the form of the remedy, and hot to the jurisdiction of the court. The court undoubtedly had jurisdiction, both of the person of the defendant and the subject of the indictment. The mistake on the part of the prosecution was in proceeding by indictment instead of by civil action, and this is the only error appearing in the record. Was it competent for the party indicted to waive his objections to the form of the proceedings ? We are of the opinion that it was. A party may waive a constitutional right, and, a fortiori,.a mere common-law or statutory right. (1 Bish. Cr. Pr., § 422.) A defendant in a criminal proceeding may bind himself indirectly by waiving rights, or directly by agreement. (Id., §§ 407, 422.) Here the defendant not only waived his objections by not insisting upon them at the proper time, but by a direct and positive agreement with the prosecuting attorney. Certainly he ought -not to be permitted to come into this court and here for the first time start objections to the form of the proceedings against him. The court, as has already been stated, had undisputed jurisdiction of the subject-matter of the indictment. The defendant submitted himself to its jurisdiction, and allowed judgment to go against him by voluntary confession and consent.

The judgment must be affirmed.

The other judges concur.