The State v. Boogher, Plaintiff in Errror

Supreme Court of Missouri1880-04

71 Mo. 631

Summary · law.co

Holding. The judgment is reversed. A defendant cannot be prosecuted for a common law offense committed before that offense was repealed by statute without a saving clause preserving liability for pre-repeal conduct.

A defendant was indicted, tried, and convicted of libel in St. Louis criminal court in 1879, with the conviction affirmed on appeal. Before the 1879 statutory revision, libel was prosecuted only as a common law offense. The new statutes defined libel as a statutory crime effective November 1, 1879, and repealed the common law provisions without including a saving clause to preserve liability for offenses committed before that date. The defendant's alleged libel occurred before the revision took effect.

The court held that when a legislature repeals a common law offense without expressly preserving the right to prosecute conduct that violated it before repeal, individuals cannot be prosecuted for that pre-repeal conduct. Although the revision contained general provisions protecting prosecutions of statutory offenses committed before repeal, those provisions applied only to offenses defined by statute, not to common law crimes. Since the common law libel offense was repealed without a saving clause, the defendant's liability for the pre-revision conduct was extinguished, and the prosecution could not proceed.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Effect of statutory repeal of common law offenses on pending prosecutions
Application of saving clauses in statutory revisions to common law versus statutory crimes
Temporal scope of criminal liability after legislative repeal

Procedural posture

A criminal conviction for libel was affirmed by the court of appeals, and the defendant appealed to the state supreme court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Henry, J.

The defendant was indictedin the St. Louis court of criminal correction for a libel. He was tried and convicted, and a judgment was rendered against him December 22nd, 1879, from which he appealed to the court of appeals, where the judgment was affirmed, and from that judgment he has appealed to this court. Prior to the revision of the statutes in 1879, libel was a common law offense and only punishable as such. It was first defined as a statutory mime by sections 1591 and 1592, and the punishment prescribed by section 1644 of the Revised Statutes of 1879. These sections took effect from and after the 1st day of November, 1879. By section 3151 of the revision of 1879 : “No offense committed, and no fine, penalty, or forfeiture incurred, previous to the time when any statutory provision shall be repealed, shall be affected by such repeal; but the trial and punishment of all such offenses and the recovery of such fines, penalties and forfeiture shall be had in all respects, as if the provision had remained in force.” Section 1675 of that revision is as follows : “ No offense committed and no fine, penalty or forfeiture incurred or prosecution commenced or pending previous to or at the time when any statutory provisions shall be repealed or amended, shall be affected by such repeal or amendment; but the trial and punishment of all such offenses, and the recovery of such fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except that all such proceedings shall be conducted according to existing laws; provided, that if the penalty or punishment for any offense be reduced or lessened by any alteration of the law creating the offense, such penalty or punishment shall be assessed according to the amendatory law.”

The common law on-the subject was repealed by sections 1591,1592,1593 and 1644; 10 Pick. 37; 11 Pick. 350; 21 Pick. 373; 13 Allen 581; United States v. Tynen, 11 Wall. 89; State v. Slaughter, 79 Mo. 484.

There is no provision of the Revised Statutes which continues the liability to prosecution and punishmént of one who had previously committed the common law offense. The above sections, 1675 and 3151, only relate to statutory offenses. The repeal of the common law without any saving clause as to offenses already committed, released him from liability for its violation, and the prosecution commenced prior to the revision for alibel committed before the 1st day of November, 1879, could not be sustained. “ It is clear,” said C. J. Shaw, in Comm. v. Marshall, 11 Pick. 351, “ that there can be no legal conviction unless the act be contrary to law at the time it is committed; nor can there be a judgment unless the law is in force at the time of the indictment and judgment. If the law ceases to operate by its own limitations, or by a repeal at any time before judgment, no judgment can be given.” As the decision of this question adversely to the State, leads to a reversal of the judgment and the discharge of the defendant, it is unnecessary to consider the other questions argued by counsel in their briefs. The judgment is reversed.

All concur.