text:
    THE STATE v. JOE PIESKI, Appellant.
    Division Two,
    March 18, 1913.
    1. APPEAL: Fjling Transcript. Upon an appellant from a judgment condemning him of any kind of felony except a capital offense, as upon an appellant in a civil case, the statute places the duty of causing to be filed in-the office of the clerk of the Supreme Court a perfect transcript. Such an appellant must not only himself see that his transcript is transmitted to and filed in the office of the clerk of the Supreme Court, but he must also see that it is filed and entered on the docket in the proper manner.
    2. -: -: In Criminal Case: No Payment of Filing Fee. The appeal of a defendant, prosecuted and convicted of a felony other than a capital offense, there being no order permitting him to prosecute 'his appeal as a poor person, will be dismissed if he does not, within one year after the appeal has been granted, pay or tender to the clerk of the Supreme Court the fee of ten dollars required by Sec. 10697, E. S. 1909; and the timely filing of his bill of exceptions in the trial court, and the certification of the transcript by the clerk thereof to the Supreme Court, and the lodging of the same with the clerk of the Supreme Court, are not enough, but he must perfect his appeal by the payment or tender of said filing fee, or show good cause for the delay. , .

      3.--: -: -: Filing. The technical meaning of the word “file” is legion; as the facts differ, so does its meaning differ. The mere lodging of a transcript with the clerk of a court does not of itself constitute a filing, if there is a statutory condition precedent remaining to be performed. Nor does the placing of a file-mark on the paper, with the teste of the clerk, constitute a filing, but is only evidence of a filing; but absent such file-marks there is no evidence that the transcript has been filed in the Supreme Court or the appeal perfected in the manner required by the statute, Sec. 5313, R. S. 1909.

      i. -: -: -: As Poor Person. An order of the trial court permitting an appellant to prosecute his appeal as a poor person will not of itself bind the Supreme Court and relieve the appellant of the duty of paying the filing fee required by the statute. It may be persuasive, upon a timely application to the Supreme Court for permission to prosecute the appeal as a poor person, but not binding, because there is no express statute upon the.subject and it is only by the vaguest statutory inference alone that it can be said that the Supreme Court has the right to permit the prosecution of an appeal without the payment of costs; and in any event, an application to prosecute as a poor person ought to be made in the Supreme Court before the lapse of the one year designated by said Sec. 5313, R. S. 1909.
    Appeal from St. Louis City Circuit Court. — Hon. Eugene McQuillin, Judge.
    Appeal dismissed.

      Henry M. Walsh for appellant.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
   ON MOTION TO DISMISS APPEAL.

PER CURIAM.

Motion to dismiss appeal for failure to perfect same within one year from the date of the granting thereof having been filed on proper and timely notice thereof given by the State, the question is before us.

The appeal herein was granted by the circuit court of the city of St. Louis on the 30th day of September, 1910. The bill of exceptions was duly filed, and on the 28th day of April, 1911, as shown by the teste of the circuit clerk, the transcript was forwarded to the clerk of this court for filing. The said transcript has not been filed for the reason that appellant has not paid or tendered the costs in this court, or “docket fee” (so-called), of ten dollars provided for by section 10697, Revised Statutes 1909. This transcript has been lodged with the clerk of this court by the act of the circuit clerk in certifying the same here, but no file-marks have been placed thereon, nor has the cause been docketed for hearing; all by reason of the failure of appellant to pay the said sum of ten dollars, hereinafter, for convenience only, called a “docket fee.”

Section 5313, Revised Statutes 1909, provides that, except in capital cases, a failure to perfect an appeal in a felony case within twelve months from the date of the granting of the same shall be grounds for the dismissal of such appeal, unless good cause for the delay shall be shown. No good cause to take the case out of the operation of the statute has been shown, if in fact there has been a failure to perfect the appeal. Whether there has been a failure so to perfect the appeal turns on the question of whether the payment or tender of the docket fee of ten dollars is a condition precedent to the perfecting of an appeal in a criminal case. Is an'appeal in a criminal case (where no order has been made permitting appellant to prosecute an appeal as a poor person) perfected when the clerk of the court nisi certifies and forwards to the clerk of this court a transcript of the record and proceedings, whether the “docket fee” be paid or not?

By statute the duty enjoined upon the circuit clerk differs according to whether the appeal be a capital felony or an ordinary felony. In a capital case the clerk is required of his own motion “without delay” to make out and forward a full transcript of the record to the clerk of this court. [Sec. 5308, R. S. 1909.] But in other felony cases appealed, such as the instant case, no such duty is enjoined on the clerk. The statute simply provides for the clerk to act in this behalf only when requested so to do by the appellant or plaintiff in error. “Such transcript,” says the statute, “sñall be made out, certified and returned, on the application of the appellant or plaintiff in error, as in civil cases, except that the costs of the transcript shall not be required in advance.” [Sec. 5309, R. S. 1909.]

Being thus' relegated to the statute governing appeals in civil cases for the rule of procedure, in perfecting appeals in a criminal case (of the kind at bar) and turning to that statute, we find it required by section 2047, Revised Statutes 1909, that “the appellant shall perfect his appeal in the manner and within the time prescribed in the next succeeding section.” Section 2048, to which special reference is made’by the language above quoted, provides that “the appellant or plaintiff in error shall cause to be filed in the office of the proper appellate court, ... a perfect transcript of the record and proceedings in the cause, or in lieu of such transcript, a certified copy of the record entry of the judgment,” etc. We quote these statutes as showing that in an appeal in an ordinary felony case the appellant in order to reach this court, after leaving the court nisi, must walk in the foot-prints of a civil appellant, though he is allowed to travel more slowly. [Secv 5313, supra.] Upon the appellant in the case at bar, as upon a civil appellant, the statute placed the duty of “causing to be filed in the office of the proper appellate court a perfect transcript.” This duty of initiative is not placed on the clerk of the lower court, but it is saddled by statute upon the appellant, except in appeals in convictions for capital offenses, when such latter clerk acts of his own volition, by statutory mandate. In other words, while the clerk is required to act, in acting he does so upon the request and at the direction of the appellant. Nor does section 2053, Revised Statutes 1909, when carefully read, militate against this view. Appellant must not only himself see that his transcript is transmitted to and filed in the office of the appellate court, hut it is his duty to see that it is filed and entered on the docket in the proper manner. [3 Oyc. 131, citing Furthman v. McNulta, 182 Ill. 310; Grunow v. Menge, 36 La. Ann. 925; Walton v. Campbell, 51 Neb. 788.]

We need not here discuss the technical meaning of-the word “file;” because that meaning is legion; as the facts differ, so also does the meaning differ. That ordinarily “a paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file” (Bouvier’s Law Diet.), we do not doubt. That an “actual delivery of the paper to the clerk without regard to any action that he may take thereon,” may also be a filing, we do not question. [Grubbs v. Cones, 57 Mo. 83; State v. Hockaday, 98 Mo. l. c. 593.] If the party offering to file a paper or legal document, has, as a condition precedent, done his full duty and performed all the legal obligations incumbent on him, he ought not of course to suffer from the mere arbitrary act of the clerk or other officer who. may refuse to perform a duty on his part. Nor does the law require such party to suffer, or hold him in default. 'But while anything remains to be done as a condition precedent, by him who, offering to file, actually delivers to the officer the custody of the document, the document cannot be said to be filed, though it be lodged with the officer, unless the officer receive it to be filed and waive- (if the waiver be within the officer’s power) the condition precedent. The placing of a file mark on a paper, with teste of the clerk thereof, is, we concede, not a filing, but merely evidence that the paper has been filed. So much on this point is said because the transcript in the instant case has been lodged with the clerk of this court, but our clerk has refused, for lack of payment in advance of the costs provided for in section 10697, Revised Statutes 1909, to receive such transcript as filed, or to indorse thereon the evidence of its being filed with him. Section 10697 is as follows:

“Clerks of the Supreme Court and Courts of Appeals, in lieu of other fees, shall severally be allowed and paid by the appellant or plaintiff in error a fee of ten dollars, which shall include all the costs in the case, including a certified copy of the opinion and mandate to the court from which said cause shall be sent, and all fee bills and executions issued in said cause: Provided, that nothing herein shall be construed to apply to any one who was permitted, as provided by law, to sue as a poor person. If the judgment of the Supreme Court or Courts of Appeals is in favor of the appellant or plaintiff in error, the clerk shall tax the fee provided herein in favor of said appellant or plaintiff in error, and it shall be their duty to issue fee bills or writs of execution in all cases in favor of the successful party, after the adjournment of each term of the court, including therein all the costs that have accrued in the Supreme Court or Courts of Appeals, and receiving for said writs or fee bills the fee now provided by law.”

That this section contemplates the payment in advance of the costs which shall accrue here as liquidated by the enactment at the sum of ten dollars, there can be but little question. We have in mind, of course, the statutory exception in the section written as to those suing in forma pauperis.

There is no express statutory authority in this State for prosecuting an appeal in a criminal case in forma pauperis. In the courts nisi it is but stating a ridiculous truism to say that one being prosecuted for a felony, has no occasion to invoke the privilege. By the vaguest statutory inference alone can it be said that this court has ■ the right, even In a proper case properly presented, to permit the prosecution of an appeal without the payment of costs. These inferences arise only from the provisions of our laws providing for the duties of official stenographers in the circuit courts of the State. [Secs. 11257, 11263, and 11246, R. S. 1909.] By virtue of these sections the trial court in case of an appeal or suing- out of a writ of error in a criminal case, if “it shall appear to the satisfaction of the court that the defendant is unable to pay the costs of such transcript for the purpose of making the appeal, the court shall order the same to be furnished, and the stenographer’s fee for making the same shall be taxed against the State or county, as may be proper.” But since orders permitting actions to be prosecuted in forma pauperis are not binding except in the court wherein such order is made (Collett v. Frazier, 3 Jones’s Eq. [N. C.] 398; Oakes v. High, 32 N. Y. Supp. 289; 11 Cyc. 204), an order thus made by the trial court would not of itself bind this court on appeal and relieve the appellant of the duty of paying the costs of this court. It might be persuasive, upon a timely application made here for permission to prosecute an appeal in a criminal case as a poor person, but not binding. But application to prosecute as a poor person on appeal here ought to be made before the lapse of the one-year period limited by section 5313, L supra.

The duty of paying this liquidated sum of ten dollars, is, we think,.from what has been paid, just as imperatively enjoined upon an appellant in a criminal case as it is upon ah appellant in a civil case. Such appellant has not perfected his appeal until he has produced it in the appellate court so that it may be heard. He cannot so produce it, clearly, till he has filed it. And the clerk is not required to file it till the appellant has complied with the condition precedent noted, viz., the payment (or tender in case of arbitrary refusal) of the costs of this court liquidated by section 10697, supra, at the sum of ten' dollars.

The same conclusion must be reached for another reason, technical, it is true, but logical and cogent: To be perfected within the purview of section 5313 supra, the transcript must be filed. The indorsement of the filing by our clerk is the proof of, the fact that it was filed, and thus the last step having been taken that the appeal has been perfected. Absent such file-marks, there is no evidence before us of filing, and of perfecting the appeal, and thus by a different road we reach the same conclusion. If the absence of this evidence of filing in fact, is not due to appellant’s dereliction, but chargeable to any arbitrary refusal of the clerk to act, appellant being rectus in curia (of which there is before us in the case at bar no charge or even hint), then a timely showing of these things would obviate dismissal, and timely action to compel the clerk to perform his duty, would correct,the default.

• We conclude that the motion to dismiss the appeal is well taken, and the appeal ought to be dismissed. It' is so ordered.


source: Caselaw Access Project

author: ROY, C.

license: Public Domain

text:
    THE STATE v. ALEXANDER LIEF, Appellant.
    Division Two,
    March 18, 1913.
    1. INFORMATION: Election. Where several misdemeanors are charged in different counts of an information it is a matter in the discretion of the trial court whether the State shall be put to an election.
    2. STATUTE: Constitutional Question: Separable Provision. A provision in Sec. 6605, R. S. 1909, a part of the Foods and Drugs Act, which requires that all fines collected shall be paid to the State Treasurer, is unconstitutional, but it is separable from the other parts of the statute and therefore does not invalidate them.

      S. FOODS AND DRUGS ACT: Includes Non-Alcoholic Drinks. The Foods and Drugs Act of 1907 covers non-alcoholic drinks.
    4. -: Misbranding: Information. Held, that the information sufficiently charged the offense of misbranding under Sec. 6596, E. S. 1909, of the Foods and-Drugs Act.
    5. APPEAL: Conviction on Two Counts: Reversal and Affirmance. Where it appears upon appeal that there was no evidence to.support the conviction of defendant upon one count of the information, and his conviction upon the other count is well supported, the Supreme Court will reverse the judgment upon the first count and affirm that upon the second.
    Appeal from St. Louis Court of Criminal Correction. ■ — Hon. Galvin N. Miller, Judge..
    Affirmed {in part).

      Benjamin J. Klene for appellant.
    (1) The amended information plainly attempts to charg’e two offenses as growing out of a single act. The gravamen of each charge in the information is the same in each case, to-wit, having this bottle of soda water in possession with intent to sell, which same act is alleged in the first count to he a crime because its contents were adulterated with this foreign substance, saccharine, while in the second count the same intent is alleged as illegal because the container of the adulterated goods was misbranded. This constitutes, if any, only one offense. Lorton v. State, 7 Mo. 55; State v. Morphin, 37 Mo. 373; State v. 0 ’Connell, 144 Mo. 387; State v. Maggard, 160 Mo. 469. (2) As section 14 of the Act of 1907 is in conflict with section 8 of article 11, and, as the act in question is inefficient without penalties, the whole act falls. Section 14 recites the penalties for all the acts denounced in this enactment. This section containing, as it does, a provision that these penalties shall he paid into the State treasury, rather than the school fund of the county, vitiates the whole section and with it the whole act. State ex rel. v. Nast, 209 Mo. 732; State ex rel. v. Warner, 197 Mo. 650; State v. Bengsch, 170 Mo. 114. The Legislature, by the Act of 1911 (Laws 1911, p. 261), has interpreted the act on which this prosecution is based as not including soda water and other non-alcoholic drinks. Such interpretation should have a large influence with the courts in determining the legislative intent of the act under which a prosecution is undertaken. 36 Cyc. 1142; Crohn v. Tel. Co., 131 Mo. App. 313; State ex rel. v. Stonestreet, 99 Mo. 361; Cooley, Constitutional Lim., p. 219; Railroad v. Brick Co., 85 Mo. 332; State v. Schenk, 142 S. W. 263; Sikes v. Railroad, 127 Mo. 326; Sedalia v. Taylor, 206 Mo. 346. (4) When one man is sought to be criminally punished, because he uses, perhaps by chance, the bottle of another, in which the latter’s name is blown, and it is sought to make such a use a misbranding of goods, the statute denouncing such an act should be so definite in terms that the State could say here is the authority. We assert that there is no enactment in this State unless it is supplied in the Act of 1911, passed after the act charged was committed, that even by implication denounces the act as unlawful. Criminal, statutes are strictly construed, nothing is added by intendment. Rixke v. Telegraph Co., 96 Mo. App. 406; State v. Reid, 125 Mo. 43; State v. Howard, 137 Mo. 289; Ackerman v. Green, 201 Mo. 231.

      Elliott W. Major, Attorney-General, and Alex. Z. Patterson, Assistant Attorney-General, for the State.
    Appellant contends that the act under which the prosecution was begun was in violation of the Constitution, in that it directed the payment of the fines assessed to the State Treasurer, while section 8 of article II of the Constitution provides that the same shall be paid to the school funds of the county in which the prosecution was had. This question has been often passed on by this court. State v. Bockstruck, 136 Mo. 335; State v. Newell, 140 Mo. 282; State ex rel. v. Warner, 197 Mo. 650. It may be conceded that the section of the Act of 1907, prohibiting the sale and manufacture of adulterated and misbranded foods (Laws 1907, p. 238), which provides that the fines assessed and collected shall be paid to the State Treasurer, is unconstitutional, but the sections of the act under which the information is drawn are not so dependent upon the penalty section, that the whole act must fail.
   ROY, C.

The defendant was convicted on both counts of an information, the first count charging him with having in his possession, with intent to sell, a bottle filled with soda water which was adulterated with saccharine, which is alleged to be poisonous and injurious to health. The second count charged him with having in his possession, with intent to sell, a bottle filled with soda water, which bottle was misbranded by having blown thereon the words “Phos-Ferrone M’f’g Co.”

The defendant filed separate motions to quash each of the counts of the information. The only parts of the motion necessary to be here considered are as follows:

4 4 Third. Because said first count does not charge the defendant with having committed any crime or misdemeanor under the laws of Missouri.
“Fourth. Because the said amended information is multifarious and several counts are improperly united in said amended information.
4 4 Fifth. Because the statute, 6595, Revised Statutes, Missouri for 1909, under which this prosecution is based, is in violation of section 4 and section 30 of article 2 of the Constitution of Missouri. ”

Both those motions were overruled.

On the first count the evidence showed that the bottles of soda water in question were delivered to the city chemist, but it fails to show whether the contents were analyzed. There is no evidence of any kind that the'contents were adulterated.

On the second count the evidence tended to show that the defendant had in his possession, with the intent to sell, bottles filled with soda water and that the bottles had blown therein the words ‘1 The contents of this bottle manufactured by the Phos-Ferrone Manufacturing’ Company, Phos-Ferrone.” There was also evidence showing that soda water and Phos-Ferrone are different substances, and their names indicate a different composition.

I. "Where several misdemeanors are charged in different counts it is a matter in the discretion of the ccmr^ whether the State shall be put to an election. [1 Bishop’s New Crim. Prac. sec. 452; State v. Pigg, 85 Mo. App. 399; State v. Kibby, 7 Mo. 317.]

II. Appellant claims that the last sentence in section 6605, Revised Statutes 1909, requiring the fines recovered under the provisions of that article to be paid into the State treasury is in contravention of section 8.of article 11, of our State Constitution, which requires that such fines shall go into the school fund of the several counties. We concede such claim. The defendant goes further and asserts that such fact invalidates all the penal features of that statute. We think otherwise. That provision is clearly separable from the other parts of the statute and does not affect them in the least. [Haag v. Ward, 186 Mo. l. c. 339; Finck v. Granite Co., 187 Mo. 244.]

III. The claim is made that the Foods and Drugs Law of 1907 did not cover non-alcoholic drinks, and that the act of April 7, 1911 (Laws 1911, 261), was an interpretation of the law to that effect and was intended to supply the deficiency. Section 6593 provides: “The term ‘food,’ as used in this article, shall include all articles used for food, drink, confectionery or condiment by man or animal, whether simple, mixed or compound. ” It is vain to contend that non-alcoholic drinks are not “used for drink” within the meaning of the Act of 1907. An examination of the amendment of 1911 will reveal that there were other reasons for the amendment than the one claimed by'the appellant. They are too numerous to be set out here.

IV. While the second count does not use the language of the statute in charging the offense, it does sufficiently charge the offense. It is not . , -,. . necessary that the . misbranding be charged under section 6597/ That is the section in reference to drugs. It sufficiently charges under section 6596 that the bottle bore a statement, design or device regarding its contents which was false as to the person, firm or corporation by whom the contents were made.

V. Appellant makes the point that he has been convicted of two offenses, one under each count, both based on the same transaction and characterized by only one intent — the intent to sell.

Without discussing the merits of that proposition, we say that as there is no evidence of any adultération under the first count we will reverse the judgment on that count and affirm the'judgment on the second count. It is so ordered.

Williams, C., concurs.

PEE CIJEIAM. — The foregoing opinion of Eoy, C., is adopted as the opinion of the court.

All the judges concur.