I concur in the opinion of the learned commissioner so far as it holds that the judgment must be reversed and the cause remanded because of an error in the instructions. I am not content, however, to leave untouched in the opinion another matter of which complaint is made.
The information is assailed as fatally defective because it concludes with the words "against the peace and dignity of State," and therefore fails literally to follow the formula prescribed by the Constitution which runs thus: "against the peace and dignity of the State." The omission of the definitive "the" before the word "State" is said to constitute fatal error.
Section 38 of Article VI of the Constitution of Missouri is as follows: *Page 690
"All writs and process shall run and all prosecutions shall be conducted in the name of the State of Missouri; all writs shall be attested by the clerk of the court from which they shall be issued; and all indictments shall conclude, `against the peace and dignity of the State.'"
A similar provision is found in the Constitutions of various other states. It has been said by this court on more than one occasion, and by the courts of last resort of other states having similar constitutional provisions, that the error here complained of is fatal. A decent respect for those authorities forbids that a different view should be announced dogmatically and without discussion.
The Missouri Constitution of 1845 contained a similar provision. In State v. Lopez, 19 Mo. 255, l.c. 256, an indictment concluding in the same words as were used in the information in the case at bar, was held to be fatally defective for that reason. There was no discussion of the question. This ruling was followed again without discussion in State v. Pemberton,30 Mo. 376, l.c. 378, an opinion rendered in 1860.
This doctrine was again announced, again without discussion, in State v. Stacy, 103 Mo. 11, l.c. 15, a case decided in 1890; but what was there said on this point was obiter.
In 1907 the same point was before this court in State v. Campbell, 210 Mo. 202, l.c. 216, when the question was discussed at length. The cases above mentioned were cited; many decisions from foreign jurisdictions were reviewed, and the error was held fatal. The Campbell case was followed in State v. Skillman,209 Mo. 408, l.c. 412, and in State v. Warner, 220 Mo. 23, l.c. 25. The case of State v. Campbell, because of the peculiar atrocity of the crime there involved (rape) and because perhaps of the elaborate discussion by which the court's conclusion was forfeited, attracted wide attention at the time and has become known as the "The" case. *Page 691
The doctrine there announced was, as we have shown, neither new in this State nor peculiar to this State. A correct understanding of the Campbell case may be had only by a study of the opinion itself, but the very pith and marrow of the reasoning there employed, is thus stated by Fox, P.J., who wrote the opinion:
"Our conclusion upon this proposition is that the indictment in this cause fails to substantially comply in its conclusion withthe terms prescribed by the Constitution, and therefore should be held invalid." [State v. Campbell, 210 Mo. l.c. 228.] (Italics mine).
That literal compliance with the words of the Constitution, even in criminal cases, is not required, is no new doctrine. Thus in State v. Hays, 78 Mo. 600, the indictment concluded "against the peace and dignity of the State of Missouri," and an objection based on the addition of the italicized words was curtly dismissed in these words: "The objection is without merit. The added words are but what the constitutional language implies, and the addition in no wise enlarged, varied or changed the phrase or the sense." [State v. Hays, supra, l.c. 603.]
So, in State v. Duvenick, 237 Mo. 185, l.c. 190, where the indictment concluding "agains the peace and dignity of the State, it was held that an objection on that score was "unworthy of serious consideration or discussion," although the attention of the court was solemnly called to the constitutional provision here involved, to the Campbell case and its predecessors, and to the undisputed fact that our language contains no such word as"agains."
We have repeatedly heretofore held certain provisions of our Constitution to be merely directory and not mandatory. For example, Section 24 of Article IV of the Constitution provides that "the style of the laws of this State shall be; `Be itenacted by the General Assembly, of the State of Missouri, as follows.'" Yet, in the case of Cape Girardeau v. Riley,52 Mo. 424, l.c. 426, this *Page 692 clause was held to be merely directory and not mandatory, citing the rule declared by Lord Mansfield in Rex v. Loxdale, 1 Burr. 447.
Again in the case of Pacific Railroad v. the Governor,23 Mo. 353, this court held that although the forms prescribed by the Constitution in passing a bill over the Governor's veto had not been observed, still the law was not therefore void.
A part of the very section here under consideration, namely, Section 38 of Article VI, which provides that "all writs andprocess shall run and all prosecutions shall be conducted in thename of the State of Missouri," was held in judgment by this court in a criminal case, State v. Foster, 61 Mo. 549, l.c. 550, and the quoted clause was held to be directory only and failure to observe it was held to be a mere irregularity.
So, in Riesterer v. Land and Lumber Company, 160 Mo. 141, Section 8 of Article XII of the Constitution was before this court and that section relating to certain acts of corporations was held to be directory only.
In the very recent case of Creason v. Yardley, 272 Mo. 279, l.c. 284, Section 38 of Article VI and Section 24 of Article IV of the Constitution were involved, though not upon the precise point here in question, and upon the authority of a long line of cases there cited the provisions of those sections were held to be directory and not mandatory. This opinion written by RAILEY, C., was adopted as the opinion of Court in Banc, GRAVES, C.J., WALKER, BLAIR and WILLIAMSON, JJ., concurring, FARIS and WOODSON, JJ., concurring in the result, and BOND, J., dissenting.
Numerous decisions of this court upon analogous questions involving points of constitutional construction might be cited, but to do so would be but to attempt to demonstrate the obvious. As was said, in effect, in the Campbell case, substantial compliance with this constitutional provision is all that is necessary. The flaw in the Campbell case is, that after announcing the rule of *Page 693 substantial compliance, the opinion applies the rule of literal compliance. It is a fundamental rule of construction of all writings, whether they be laws, wills, deeds, contracts or constitutions, that they must be construed as a whole, and not in detached fragments; that they must be construed to effectuate and not to destroy their plain intent and purpose, and that in determining what is that intent and purpose all provisions relating either generally or specially to a particular topic are to be scrutinized and so interpreted, if possible, as to effectuate the intention of the makers. This rule does not need (though it does not lack) authority to give it vitality. It is inherent in the very nature of things, and springs from reason as Minerva sprang from the brain of Jove, full-grown and ready for battle.
Concerning the construction of constitutions it has been well said that:
"Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature founded on the common business of life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common-sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss." [1 Story, Constitution, sec. 451.]
If we turn to a study of our Constitution, we find that it plainly declares its intents and purposes. They are to promote the general welfare of the people and to give security to life, liberty and property; to afford certain remedy for every injury to person, property or character, and to guarantee that right and justice shall be administered without sale, denial or delay. These with other objects, are plainly declared in the Bill of Rights. True, Section 38 of Article VI provides that indictments shall conclude "against the peace and dignity *Page 694 of the State," but to say that to omit the final "the" in that dignified phrase — an omission which impairs its rythm, perhaps, but does not vary its meaning — is fatal error, is to permit a rule of rhetoric to emerge victorious from a conflict with the Bill of Rights. It is to sacrifice substance to form and to allow a trivial omission of a minor word in a subordinate paragraph relating to a mere matter of procedure to outweigh the very fundamentals of the Constitution. No one will contend that the makers of the Constitution ever intended such a consequence.
It has been well said by a high authority that:
"The true rule of construction is not to consider one provision of the Constitution alone, but to contemplate all, and therefore to limit one conceded attribute by those qualifications which naturally result from other powers granted by that instrument, so that the whole may be interpreted by the spirit which vivifies, and not by the letter which killeth." [WHITE, J., in Downes v. Bidwell, 182 U.S. 312.]
That great and painstaking care must be used in conconstruing the Constitution; that it must be solemnly regarded as the final expression of the will of the people, who are the earthly source of all law; that constitutional provisions are not to be frittered away by nice construction or doubtful interpretation, may all be conceded, and indeed, I expressly recognize and assert them. It is in precisely those respects that the reasoning of the "The" case fails. That reasoning sees one clause of one minor section of the Constitution and sees naught else. In literal obedience to one phrase, the dominating scheme and purpose of the whole document are forgotten.
Much musty learning might be dug from forgotten books, did time and space permit, to show the various endings of indictments at common law, and why it may have been thought advisable forty-five years ago, when our Constitution was written, to provide that there should be but one ending, and, but for the same limitations, many authorities might be cited in support of the *Page 695 views herein announced. It seems sufficient to say that in the case at bar there was a substantial compliance with the requirements of the Constitution, and that is all that is necessary; that to so hold does not deprive the appellant of any right, nor impair any valid defense which he may have; nor arm the State with any new weapon; nor alter the meaning of the charge, nor in any wise interfere with the orderly administration of justice.
I therefore think that appellant's contention that the omission of the word "the" before the word "State" in the final phrase of the information is reversible error, should be overruled. I also think that the cases of State v. Lopez, 19 Mo. 255; State v. Pemberton, 30 Mo. 376; State v. Stacy, 103 Mo. 11; State v. Campbell, 210 Mo. 202; State v. Skillman, 209 Mo. 408, and State v. Warner, 220 Mo. 23, l.c. 25, and all other decisions of this court which follow the holdings of these cases upon the point here involved, should, upon that point, be and hereby are overruled.
To clarify the situation, I also think it should plainly be understood that the law in this State upon this proposition is neither more nor less than this: The omission of the word "the" immediately preceding the word "State" in the phrase "against the peace and dignity of the State," with which all indictments and informations properly should conclude, is not reversible error.Williams, P.J., and Walker, C.J. concur.