Duncan v. State
Indictment in a court of the state of Missouri against Harry Duncan for murder. A judgment of conviction was rendered, and was affirmed on appeal by one of the divisions of the supreme court of the state, (22 S. W. 699,) which also denied an application by defendant for a rehearing, and a subsequent application by him for a transfer of the cause to the full bench, on the ground that a federal question was involved. Defendant brings error.

Under the constitution of Missouri, in force at the time of the commission of the homicide to which this case relates, the judicial power of that state was vested in a supreme court and other inferior courts as therein mentioned, the supreme court consisting of five judges, any three of whom constituted a quorum. Const Mo. 1875, art. 6.

In 1889 the general assembly of Missouri passed a concurrent resolution, submitting to the qualified voters of the state an amendment to the constitution, concerning the judicial department, to be voted upon at the general election to be held on the Tuesday next following the first Monday in November, A. D. 1890, which vote was had accordingly, and the amendment ratified and adopted. This amendment provided, among other things, as follows:

'Section 1. The supreme court shall consist of seven judges, and, after the first Monday in January, 1891, shall be divided into two divisions, as follows: One division to consist of four judges of the court and to be known as division number one; the other to consist of the remaining judges and to be known as division number two. The divisions shall sit separately for the hearing and disposition of causes and matters pertaining thereto, and shall have concurrent jurisdiction of all matters and causes in the supreme court, except that division number two shall have exclusive cognizance of all criminal cases pending in said court: provided, that a cause therein may be transferred to the court as provided in section four of this amendment. The division of business of which said divisions have concurrent jurisdiction shall be made as the supreme court may determine. A majority of the judges of a division shall constitute a quorum thereof, and all orders, judgments, and decrees of either division, as to causes and matters pending before it, shall have the force and effect of those of the court.'

'Sec. 4. When the judges of a division are equally divided in opinion in a cause, or when a judge of a division dissents from the opinion therein, or when a federal question is involved, the cause, on the application of the losing party, shall be transferred to the court for its decision; or when a division in which a cause is pending shall so order, the cause shall be transferred to the court for its decision.' Laws Mo. 1889, p. 322.

All provisions of the constitution of the state, and all laws thereof, not consistent with the amendment, were declared rescinded upon its adoption.

In accordance with the amendment, the supreme court became thereafter composed of seven members, (two being added as provided,) divided into divisions 1 and 2.

Harry Duncan was indicated at the January term, 1891, of the St. Louis criminal court, for the murder of one James Brady, October 6, 1890, and, after he had been arraigned and pleaded not guilty, the cause was removed, on his application, to the circuit court of St. Louis county, wherein it was tried at September term, 1892, and resulted in his conviction, and sentence to death. From this judgment he prosecuted an appeal to the supreme court, where the cause was heard by division No. 2. The errors assigned on Duncan's behalf embraced the various points which had been saved upon the trial, but no federal question was raised either in the appellate or the trial court. The supreme court, division No. 2, on May 16, 1893, delivered an opinion discussing the errors relied on, (reported in advance of the official series, 22 S. W. 699,) and affirmed the judgment. On May 26th, Duncan applied for a rehearing, which was denied May 30th. No reference to any federal question was made in the opinion or in the application for a rehearing.

Thereupon, June 7th, a motion was filed on behalf of Duncan for the transfer of the cause to the supreme court in banc, upon the grounds that the cause was determined solely by a minority of the supreme court; that a federal question was involved, in that the amendment to the constitution of Missouri was in conflict with the constitution of the United States; that the offense with which Duncan stood charged was committed October 6, 1890, and before the adoption of the amendment, and that said amendment and the proceedings thereunder were in violation of section 10, art. 1, of the constitution of the United States inhibiting the passage of ex post facto laws, and in contravention of the fourteenth amendment, in that thereby the privileges and immunities of appellant were abridged; he was denied the equal protection of the laws, and would be deprived of life without due process of law; and that such amendment and proceedings were in conflict with fundamental principles. The motion was denied, and subsequently this writ of error was allowed by the chief justice, and now comes before the court on a motion to dismiss.

R. F. Walker, Atty. Gen., Mo., for the motion.

Emanuel M. Hewlett, opposed.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes
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