We desire to add but little to what we said in our opinion upon the order granting the rehearing.
I. So much is said about the jurisdiction of a circuit court to try felonies, that one would conclude this question had never been thought of until the new rule was announced in what is now the majority opinion. What Judge WAGNER, in theJurisdiction. Meyers Case, said, was that he knew of no law giving a circuit court the right to hold over one sentenced at a given term of court until a succeeding term and then try him upon a charge pending prior to the first sentence. This was saying in legal parlance that he knew of no law conferring such a jurisdiction, power or right, whatever name you choose to use. Judge WAGNER added that this man's place was in the penitentiary, and not in a county jail, after a penitentiary sentence had been passed. This is rather a sensible observation. He perhaps thought that when one gets to the penitentiary he would then be within the jurisdiction of executive clemency only, and not within the jurisdiction of any court, for further trial. We speak of the person of the criminal, and also its bearing upon his rights. Other cases speak of a defendant sentenced, but out upon appeal bond, being within another jurisdiction (State v. Buck, 120 Mo. l.c. 496), and there is not so much foolishness about these old ideas. When the prisoner in the circuit court appeals, and gives bond to appear in this court for judgment, it is not so far-fetched to say that such convict is within a jurisdiction different from a circuit court. A long line of old cases (in fact all cases up to the present time) so viewed it. It is not without reason, because it could well be concluded that the convict should respond to the judgment of the Supreme Court first. We have cited the cases more in detail in our opinion dissenting from the order for re-hearing and shall not go further now. Suffice it to say that those cases went to the jurisdiction *Page 427 of the circuit court. Jurisdiction means the present legal right to try, hear and determine a cause. It cannot be urged that these cases were not dealing with jurisdiction. Out of them all can be deduced the rule that one under sentence to the penitentiary cannot, at a later term of the court, be tried upon a charge of a crime committed before the sentence. This was the first branch of the rule, but other cases added thereto the additional rule that one did not have to be sentenced at the particular time or term, and that the State could procure as many verdicts of guilt prior to sentence as the State desired. We shall not rehash what was in our first opinion.
II. At the re-hearing of the case it was frankly admitted by the learned Assistant Attorney-General having charge of the case, that what has been called the Missouri rule of law, involved here, was as fair to the State as the rule of law in other states of this Union. This is a matter which cannot beEmergency disputed. Under the old Missouri rule, there was noRule. limit to the number of convictions, if the prosecuting officers and trial judge observed the rule. The fault was not in Missouri law, but in the non-observance of Missouri law. The situation in these Meininger cases was not occasioned by laws favorable to criminals, but by the non-observance of laws and rules of conduct favorable (admittedly so by the representative of the State in this court) to the State in the punishment of offenders. Under all the facts the rule now announced is an emergency rule to meet the delinquencies of officers concerned with the cases before the advent of this case here. I am opposed to emergency opinions from and by any court. If an emergency, such as we have in these cases, will justify the overturning of a rule of law in all respects favorable to the State, and one of such long standing, then some other emergency may call for up-rooting some other law, and so on, ad infinitum. Emergencies arising either *Page 428 from willful or ignorant neglect of lower officials, should not furnish the basis for changing the existing law. If the existing law was unfair to either the State or the defendant, we would have a different question for discussion.
For these reasons, and for those expressed in my opinion on the order granting a re-hearing, I dissent. Walker and Woodson,JJ., concur in these views.