State v. Thomas , 301 Mo. 603 ( 1923 )

Appellant was charged by information in the Circuit Court of Schuyler County with grand larceny. On her application a change of venue was granted to Adair County, where upon trial before a jury she was convicted and her punishment assessed at two years' imprisonment in the penitentiary. From this judgment she appeals.

The specific charge was the stealing in the night-time of a turkey from the premises and which was the property of one Oliver.

The sufficiency of the evidence is not questioned. While largely circumstantial it presented a chain of facts of ample probative force to sustain the conviction. It is not necessary therefore to make a detailed statement of same.

I. The jurisdiction of the Circuit Court of Adair County is challenged. This contention is based on the omission by the Circuit Clerk of Schuyler County from the transcript transmitted by him to the Circuit Court of Adair County, of the order for the change of venue. That the order was made appears fromChange of other record entries incorporated in the transcript.Venue. Among other things it appears, as required by the statute (Sec. 3928, R.S. 1919), that she entered into a formal recognizance in the Circuit Court of Schuyler County for her appearance in the Circuit Court of Adair County to answer the charge preferred against her. In this recognizance it is stated "that the Circuit Court of Schuyler County at its October term, 1921, did, on the application of the said Nellie Thomas, grant a change of venue of said cause to the Circuit Court of Adair County." Upon the convening of that court at its January term, 1922, the appellant, in compliance with her recognizance, appeared in person and by counsel, went to trial and was convicted as stated.

The jurisdiction of a court to which a case is transferred by change of venue attaches eo instanti upon the making and entry of record of the order for the change by the court where the suit was instituted; and it may be added that the court's action becomes final upon its adjournment for the term without a change in the order, as was the case at bar. [State v. Decker, 217 Mo. l.c. 315; State v. Lay, 128 Mo. l.c. 616 and cases; State v. Dusenberry, 112 Mo. l.c. 288; State v. Buck, 120 Mo. 479, 108 Mo. l.c. 629; State v. Webb, 74 Mo. 333; Ammons v. State, 9 Fla. 530.] Jurisdiction having been conferred by the order it could not be divested simply by the inadvertence or misprision of the clerk. [State v. Compton, 77 Wis. 460; Harrall v. State, 26 Ala. 52.] Viewed in its most serious phase the omission constituted but an irregularity which the trial court was empowered to correct upon the entry of an order requiring the making and certification to it by the Circuit Court of Schuyler County of a copy of the order for the change. This power is inherent in courts of general jurisdiction and its exercise is justified that they may have before them the correct and complete record of the case transferred. However, the omission was ignored in the trial court, the appellant contenting herself by calling attention thereto for the first time upon the appeal to this court. Being, as we have stated, an irregularity and the fact that the order was really made having been fully attested, we are authorized under the supervisory power given to this court over subordinate tribunals by the State Constitution (Sec. 3, Art. 6), and by precedent (State v. Howell, 117 Mo. 307), to order that the Clerk of the Circuit Court of Schuyler County correct the record to conform to the facts and to make and certify to this court a copy of said order of the change of venue. This having been done and the order being before us, authorizes a disposal of this contention adversely to the appellant. It is not irrelevant to say that this exercise of supervisory power, while fully warranted by the Constitution, is also recognized by the Common Law. [Tidd's Pr. (4 Am. Ed.) 479; 24 Am. Eng. Ency. Law, 1016; State ex rel. Bank v. Johnson, 103 Wis. 591, 51 L.R.A. 33; State ex rel. Monett Mill Co. v. Neville, 57 S.W. (Mo.) 1012.]

A more summary disposition of this contention might with propriety have been made: the error complained of, as we have held, was but an irregularity; as such to entitle it to consideration here it should have been called to the attention of the trial court and upon an adverse ruling thereon preserved in the bill of exceptions. This course not having been pursued the error is not entitled to review. [State v. Nave, 185 Mo. l.c. 135 and cases; Stearns v. Railroad, 94 Mo. l.c. 321; State v. Dodson, 72 Mo. 283; State v. Knight, 61 Mo. l.c. 374; State v. Dudley, 56 Mo. App. 451.]

II. It is further contended that the act upon which this prosecution is based is void in that the subject of same is not clearly expressed in the title and that the act is broader than the title. This contention in so far as the latter partTitle of the same is concerned is on its face clearlyto Act. unfounded. From the argument made by appellant in support of the same it is evident that it is due to a misconception of what constitutes the title to an act within the meaning of the State Constitution. By the title is meant that designation prefixed to an act by the Legislature which defines the character of the legislation. The act in question was adopted during the session of the 43rd General Assembly as Senate Bill No. 195 (Original Rolls, p. 335), and the legislative title prefixed thereto was as follows: "An act to enact a new section by adding a new section after Section 1901 of Article 3 of Chapter 15 of the Revised Statutes of Missouri of 1899, to be known as Section 1901a relating to Crimes and Punishments." In addition to the foregoing there is prefixed to the act as it appears in the Laws of 1903 (p. 161) preceding the authorized title, the following: "Crimes and punishments — Offenses against public and private property — Chicken stealing;" and immediately following the authorized title are the words: "Section I. Chicken stealing declared larceny." These captions or attempted additional indicia of the character of the act form no part of same, if for no other reason than that they have not received legislative sanction. They therefore constitute no part of the title within the meaning of the Constitution (Sec. 28, Art. 4) and are not to be considered in determining the validity of the act. Their evident purpose was to more definitely define the nature of the act and they are inserted under the direction of the Secretary of State in compiling the Session Acts and constitute nothing more than an expression of the opinion of clerical officers charged with that duty as to the nature of the acts. In this instance, as is not infrequently the case, the effort was ineffectual in that the compiler attempted to limit the scope of the act to but one class of domestic fowls, viz., chickens, when by its terms all such fowls were included. So far, therefore, as this phase of the contention is concerned it must be ruled against the appellant.

It is contended in addition, however, that this act is violative of Section 28 of Article 4 of the Constitution in that it contains more than one subject which is not clearly expressed in its title. In the discussion of this contention the salutary and well-established rules of construction concerning the sufficiency of titles under the Constitution should be kept in view and under all reasonable circumstances the validity of legislative action upheld if it is possible to do so without doing violence to the language employed and the meaning evidently thereby intended to be conveyed. While it has been frequently held that the constitutional section, under review, is mandatory, it is likewise held that a title should be liberally construed in support of the power sought to be exercised by the Legislature. If therefore the title to an act is a fair index of same in that it indicates the character of the act or its proper classification, matters not specified therein will not render it invalid (Ex parte Hutchens, 246 S.W. (Mo.) l.c. 189 and cases); or as stated in an earlier case (State v. Whitaker, 160 Mo. 59) it is only necessary that the title indicate the subject of the act in a general way without entering into details. The specific character of the act in question was to declare the stealing of domestic fowls to be grand larceny. A more general classification of the act was that it was an offense against private property and a still more general definition and that which was embodied in the title was to declare the offense named to be a crime, to prescribe the punishment therefor and to classify it as relating to Crimes and Punishments. Where, as here, the act has reference to only one subject, is definite in its terms and as such not calculated to mislead or difficult to interpret, we have held that however general the title may be it will not render the act invalid. Illustrative of this conclusion we have ruled in a recent well considered case (Ex parte Karnstrom, 249 S.W. (Mo.) 595) in which the opinion was written by the presiding judge of this division, HON. DAVID E. BLAIR, that where an act concerning vagrants was incorporated for the first time by a legislative revising committee in 1879 in the general criminal code introduced and adopted at that session of the Legislature, the title to which was: "An act to revise and amend the code of Crimes and Criminal Procedure, declaring and defining public offenses, prescribing punishments therefor and proceedings thereon, Approved May 19, 1879," was not, on account of its generality, violative of the Constitution and hence the act concerning vagrants was not invalid by reason of its incorporation therein without a more specific title. That case reviews with discrimination earlier rulings to a like effect from State v. Brassfield, 81 Mo. 151, to recent cases, and their citation here becomes therefor unnecessary. Satisfied as we are with the soundness of the conclusion reached in the Karnstrom Case in its compliance with the constitutional requirement, we hold that the appellant's objection to the title to the act under consideration is without substantial merit.

It is not improper to add in conclusion that misapprehension seems to exist concerning the ruling in State v. Doerring,194 Mo. 398, as to what constitutes the title to a legislative act. That case does not hold that the caption or designation of the nature of an act constitutes a part of the title unless it was prefixed thereto upon its introduction or during its passage and became thereby a part of the legislative enactment. To hold otherwise would be to assume that legislative power existed in clerical officers or a board simply empowered to compile and arrange the statutes.

There is no error in this record and the judgment of the trial court is affirmed. All concur.