Vaughn & Vaughn v. The State, 4 Mo. 290

Wash J. delivered the opinion of the court. The only question which is now submitted for adjudication is, whether the plaintiffs in error were entitled to their bill of exceptions in this case?

The couusel for the plaintiffs in error, have made and rely upon this point viz: “That a bill of exceptions ought to be granted in all cases of amere misdemeanor, and especially in cases for the collection of the revenue.” On the other side, the circuit attorney insists, that the plain-tills in error were not entitled to their bill of exceptions in this case, and that the same should be disregarded by this court as forming no part of the record proper to be looked into upon a writ of error.

Several authorities have been cited by the counsel for the plaintiffs in error, from which it would seem that in the English courts, the law on the points raised, has never been considered as settled. In 1 Leon. S. a bill of exceptions was allowed in an indictment for tresspass; in 1 Vent 336, it was allowed in an information in nature of a quo warranto; in 1 Vern. 175, it was allowed in an indictment lor a riot; and in Ca. Temp. Hardw. 250, 1 it was allowed in an indictment for a libel; and in the case last cited, it was said by Ld.

Hardwick, that in informa-tions in the exchecquer, and in devonerunls, (the first of which are properly civil suits for the King’s debts; and the latter the King’s actions of trover) bills of exceptions were allowed. Lord Coke in treating on the statute of Westm. 2, 13 Ed. 1 S. 31, which fixed the right to bills of exception, says the statute, extends to all actions, .real personal and mixed; but makes no mention of criminal cases.

The silence of Lord Coke, so noted for his accurate learning, and accute observation, should be taken "as high authority, against the extension of the statute to criminal cases, the words of the statute, “se dliquis implaci titur” &c., would seem to apply to civil suits, and to persons impleaded therein in contradistinction to indictments and prosecutions; and Lord Hardwick himself, in the case above cited (Ca. Temp. Lord Hardw. 250) considered the point not then settled, and stated that it had never been determinedjthat a bill of exceptions would lie in a mere criminal proceeding. In the case of Sir H.

Vane, 1 Lev. 68, the court held.that a bill of exceptions would not lie. “Because (as they said) criminal cases were not within the statute, but only actions between party and party.” This was said on an indictment for high treason, has been regarded in the English courts, as settling the law, only in cases of treason, or felony. It may be readily seen how, from actions of a mixed charac-jer? qU{ tam actions, informations in the exchecquer and in nature of a quo warranto &;c., the equity of the statute has been extended to minor criminal offences.

In giving a construction to this statute as it comes to us by the adoption of the common law, and the statutes in aid thereof, down to the 4th of James the 1st, it has become the duty of this court to look into the decisions of the English courts made prior to that period. In doing so we find the question submitted for adjudication, an open one, to be settled in our courts for the first time. The couusej for the plaintiffs in error have cited and relied upon the case of Mitchell v. The State, — 3 Mo.

Dec. 283, as giving a construction to the statute, in support of the point relied on, or as recognizing the authority of the cases cited from the English bar, to show that the law has been so settled in the English courts. Mitchell’s case was on an indictment for murder, and this court decided that he had no right to his bill of exceptions. It would have been extrajudicial to have decided (as the plaintiffs counsel seem to think this court intended to decide in that case) that bills of exception were allowable in minor criminal cases. The decision of this court cannot be so understood or interpreted.

On the contrary, so far as the point was considered, it is clear that the court inclined to the opposite doctrine, for whilst the court say: “In minor criminal cases bills of exceptions have been allowed ex gratia,” they say also “in legislating on the subject of bills of exception, they (the legislature) confine themselves expressly and carefully to civil cases. Their failure to provide for them in criminal as well as civil eases, whilst they were passing upon the subject, is to be taken as 'equivalent to an express denial of them.” This is still the doctrine held by this court.

From the language of the original statute therefore, and the construction given to it in the English courts, — from the silence of our legislature upon the introduction of the statute with a knowledge of the doubts that had arisen as to its construction as well as from the- inconvenience and danger that would attend the application of the statute to criminal cases, we have been led to the conclusion that the plaintiffs in error were not entitled to their bill of exceptions in this case, and that the same should be disregarded.

As the law now stands under the revised statutes of the last session of the legislature, the plaintiff's would be entitled to their bill of exceptions, but this case originated under the old law.