Opinion
No. 21930.
April 17, 1953.
Alfred H. Osborne, Kansas City, for petitioner.
Richard K. Phelps and W. Prewitt Ewing, Kansas City, for respondent.
The petitioner, Alfred H. Osborne, by this proceeding in habeas corpus, seeks to be released from custody and finally discharged upon an indictment, No. C-24633, for subornation of perjury pending in the criminal court of Jackson County, Missouri.
Our writ issued and respondent filed a return, and thereafter filed an amended return, to which petitioner filed answer and respondent filed a reply to the answer.
The basis of petitioner's contention, according to his pleadings, is that he is entitled to be released from custody and finally discharged upon said indictment because he has not been brought to trial on that indictment within four terms of court, as required by Sections 545.900, 545.910, and 545.920, RSMo 1949, V.A.M.S. He alleges that the charge made against him has been continued for four consecutive terms, without just cause or excuse; without his consent to such continuances, and that at each term he demanded a trial, or that the case be transferred to another division of the court where a trial could he had.
There are other allegations in petitioner's pleadings, which will be referred to hereinafter.
The pertinent part of the sheriff's return alleged that petitioner was not entitled to release and discharge on said indictment under the record entries made in said cause by the court. A certified copy of such entries was made a part of the return.
From the pleadings, the following facts and record entries are conceded: (All italics ours, unless otherwise indicated.) The indictment against petitioner was returned on November 9, 1951, which was the last day of the September term of the court; a capias was issued and petitioner was arrested and appeared in court on November 13, 1951 (November term); was arraigned and entered a plea of not guilty and released on bail, and the court made the following order: "Whereupon the court orders that the trial of this cause be continued for the term * * *." At the next term, January, 1952, the court ordered the "case continued for the term * * * on account of the docket being congested and lack of time." At the March term the court ordered that " on account of lack of time and congested docket, it is ordered by the court that the case be continued for the term and set for trial on the first day of the next term." At the next term (May) the court ordered that the case be "continued for the term and set for trial on the first day of the next regular term of this court, the same being the 8th day of September, 1952." At the September term, this entry was made: "Now on this day, (Oct. 27) on account of congested docket and lack of time, the court of its own motion orders that the above numbered and entitled cause be and the same is hereby continued for the term and set for trial on the first day of the next regular term, the same being the 10th of November, 1952."
The record of the September term further shows that on the first day of that term the petitioner filed a motion to quash the indictment and also filed a motion to be discharged under said indictment because he had not been brought to trial within four consecutive terms. On September 19 both motions were withdrawn and the cause set for trial on the 20th of October. On the 18th of October petitioner refiled his motion to quash indictment and for discharge. On October 27 the two motions and the case were continued to the next term, as indicated supra.
At the November term the court heard evidence on petitioner's motion for discharge and overruled the same, and also overruled the motion to quash the indictment and set the case for trial on the 5th of January, 1953 (November term, 1952); whereupon defendant filed a petition for a change of venue, because of prejudice of the judge, and the cause was transferred to the Independence Division of the Circuit Court of Jackson where the cause was pending at the time petitioner filed his petition for Writ of Habeas Corpus in this court on January 26, 1953.
By his petition and answer, petitioner challenges the truth of the record entries of continuances made by the court at the various terms, as set out above, and alleges that he was demanding a trial at each term; that the records of each division of the Circuit Court of Jackson County show that there was ample time to try his case; that other criminal cases filed subsequent to the time the indictment was returned against him were tried by various divisions of the court; that the court acted arbitrarily and capriciously in continuing the indictment against him; and that the court overruled his motion for discharge because of false, fraudulent and perjured testimony. In other words, he seeks to attack collaterally the record entries of the court by alleging and proving facts de hors the record which are inconsistent with the recitals in the orders.
The petition in this case consists of 13 typewritten pages, together with certain exhibits attached thereto, and the answer contains 46 pages, but, under our view of this proceeding, it is unnecessary to set out in greater detail the allegations of the petition, amended return, answer and reply. We say this because it is our conclusion that habeas corpus is not the proper procedure, under the record, to present the issue of petitioner's right to discharge. If he is ordered discharged in this proceeding such discharge "is equivalent to a verdict of acquittal with judgment thereon." It is not a mere release from custody of the sheriff. State v. Wear, 145 Mo. 162, 187, 46 S.W. 1099.
In considering what is said hereinafter, it must be kept in mind that we are not confronted with the question whether habeas corpus will lie to test the jurisdiction of a court under Section 532.-430. There can be no doubt that if an indictment upon its face is a nullity, or if the court patently exceeds its jurisdiction, such question can be raised by habeas corpus. Fernbaugh v. Clark, 236 Mo.App. 1200, 163 S.W.2d 999; Griggs v. Venerable Sister Mary Help of Christians, Mo.App., 238 S.W.2d 8. But the right to discharge because of failure to grant a speedy trial is not a jurisdictional question; it is a privilege which may be waived, and is waived, if not asserted in the proper manner and at the proper time. Levine v. U.S., 8 Cir., 182 F.2d 556, 558; certiorari denied, 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665. See, also, State v. Hicks, 353 Mo. 950, 185 S.W.2d 650; State ex rel. Billings v. Rudolph, 322 Mo. 1163, 17 S.W.2d 932. Thus the right of a party to be discharged for failure to grant him a speedy trial is in the nature of an interlocutory matter, which must be raised before trial and, if not, the right is waived; it is a matter for judicial determination, after a hearing upon the merits. The right to discharge, under the statutes hereinafter referred to, is not mandatory and automatic upon expiration of the specified number of terms of court, but is dependent upon a finding of laches on the part of the state. This principle runs through all the Missouri cases. See State v. Huting, 21 Mo. 464; State v. Marshall, 115 Mo. 383, 22 S.W. 452; State v. Nelson, Mo.Sup., 279 S.W. 401; State v. Woods, 346 Mo. 538, 142 S.W.2d 87, and State v. Haines, 160 Mo. 555, 61 S.W. 621.
With these general principles in mind, we examine the record and the applicable statutes.
Section 545.900 provides that "If any person indicted for any offense, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happened on his application, or be occasioned by the want of time to try such cause at such third term." Petitioner was admitted to bail in the case and this section is applicable. However, section 545.-920 provides: "In all cities or counties in this state in which there shall be more than two regular terms of the court having jurisdiction of criminal cases, the defendant shall not be entitled to be discharged for the reasons and under the circumstances mentioned in section * * * 545.900, * * * until the end of the fourth term after the indictment was found, * * *." There are more than two regular terms of the Circuit Court of Jackson County having jurisdiction of criminal cases and, therefore, this section governs the number of terms which must elapse before the petitioner is entitled to his discharge. In other words, he is not entitled to be discharged until the end of the fourth term after the indictment was found and is not entitled to be discharged at that time if "the delay happened on his application, or be occasioned by the want of time to try such cause at such third [fourth] term."
The term at which the indictment was returned is not to be considered under the statute; therefore, the first term to be counted is the November term, 1951, at which time the court entered a general order of continuance as quoted, supra; at the January and March terms, 1952, the court ordered the case continued "on account of the docket being congested and lack of time"; at the following May term the court entered a general order of continuance; and at the following September term the cause was continued "on account of congested docket and lack of time, the court of its own motion ordered * * *" that the cause be continued to the next term. The pleadings also concede that at said September term the petitioner filed a motion to quash the indictment and to be discharged because he had not been brought to trial within the time prescribed by the statutes, supra; that both motions were withdrawn and the cause set for trial on the 20th of October (during the September term), but on the 18th of October petitioner refiled his motion to quash the indictment and for discharge; whereupon the cause and both motions were continued for lack of time to dispose of the same at that term.
The pleadings also show that at the November term, 1952, petitioner's motion to quash the indictment was overruled, and evidence was heard on his motion for discharge and that motion was overruled. The grounds raised in the motion are the same as those raised in this proceeding. Petitioner challenges the correctness of the order overruling his motion upon the ground that it was founded upon false and perjured testimony offered by the state.
The question is, can the petitioner, by habeas corpus, collaterally attack the validity of the orders of continuance concededly made and entered by the court at the various terms, as above indicated; and also challenge the correctness and validity of the order of the court in overruling his motion for discharge, which was founded on the same theory, as he asserts in this habeas corpus proceeding? We think not.
The orders of continuance at the January, March and September terms specifically define and recite that the continuances were due to congested docket and lack of time to try petitioner's case. Petitioner seeks to avoid the effect of such orders by alleging and offering to prove that there was time at each term to try his case. Such allegations and proof would be inconsistent with the orders of continuance. The rule is that a judgment of a court having jurisdiction of the subject matter and of the party is not subject to collateral attack in a habeas corpus proceeding if the attack is based on a pleading or on evidence which is inconsistent with the findings in the judgment. Young v. Parker, 355 Mo. 245, 246, 195 S.W.2d 743, 744, and cases there cited and discussed.
This question was discussed by the Supreme Court of Ohio in Ex parte McGehan, 22 Ohio St. 442. From the opinion it appears that the statutes of that state are identical with our statutes relative to the right of a defendant to a speedy trial, and the grounds for continuance by the court. McGehan brought proceedings in habeas corpus in the Supreme Court for discharge under the statutes and, among other things, it appeared that he had filed a motion in the trial court seeking to be discharged for the same reasons asserted in his petition for habeas corpus and that motion had been overruled. In disposing of the matter, it was said, 22 Ohio St. at page 445: "But another answer to this application is, that we can not, in an ex parte proceeding of this nature, review and reverse the judgment of another court. This is in fact what we are asked to do. The discharge of the prisoner provided for in these sections of the code is to be regarded, not as a mere temporary release from imprisonment, but as a discharge from prosecution for the crime or offense. It is, in effect, an acquittal, and the order granting it is a final judgment in the cause, and puts an end to all proceeding therein. The real complaint here is, that the court erred in refusing to render such final judgment in the cause, and instead thereof, remanding the prisoner to custody and continuing the cause. This judgment of the court, until reversed, is a valid judgment, and good authority for the retention of the prisoner in custody. To order the prisoner's discharge while that judgment, or order, of the court is still in force, would be in effect to reverse the judgment, or order, of the court, and to render a final judgment in the cause, while it is still pending in the court below. Indeed, it would seem that a reversal of the judgment and order of the court below, and the rendition of a final judgment here, by which the prisoner is to be acquitted from the charge, and an end to the prosecution, is all that is sought from us, and that no question of mere personal liberty is involved in the application." We think this is a clear and concise exposition of the question confronting us.
In determining the number of terms in which a case may be continued without the defendant being entitled to discharge, the statute excludes the term at which the indictment or information was filed; the term or terms at which the continuance is granted at defendant's request; and the term or terms when the case was continued "for lack of time." State v. Woods, supra. Thus the continuances at the January, March and September terms must be excluded, and this leaves but two terms (November, 1951 and May, 1952) for which the state, in any event, could be charged with not bringing the petitioner to trial. We do not mean to say that the general continuances at said November and May terms can be charged as laches on the part of the state because it has been held that a general continuance by the court will be presumed to have been made for good cause. State v. Nelson, supra. What we do hold is that, at most, he can take advantage of but two continuances and, therefore, would not be entitled to his discharge under the statutes.
The legislative history relative to the statutes governing a speedy trial is interesting and, we think, has a direct bearing on the question whether habeas corpus is the proper procedure, in this state, to secure a final judgment of discharge under a pending indictment for failure to bring a defendant to trial within a certain number of terms of court.
Section 11 of "An Act regulating the proceedings on writs of Habeas Corpus", Revised Statutes of Missouri 1825, p. 424, provided that a person charged with a criminal offense must be brought to trial within a certain number of terms and, if he was not, then "the prisoner shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner". In the Statutory Revision of 1834-35, the General Assembly transferred the section relating to a speedy trial from the article on Writs of Habeas Corpus to the article on "Practice and Proceedings in Criminal Cases", and provided that a defendant "shall be entitled to be discharged, so far as relates to the offence * * *," art. 6, § 24, if not brought to trial within a certain time. Thus the language of the statute was changed so that the defendant was entitled to be discharged from the offense (acquitted) instead of set at liberty.
It is interesting to note that at the 1835 session of the Legislature (the same session at which the sections relating to a speedy trial were transferred from the article on Habeas Corpus to the article on Criminal Procedure) it enacted Section 12 as a part of the Habeas Corpus code. This section reads: "No person imprisoned on an indictment found in any court of competent jurisdiction, or by virtue of any process or commitment to enforce such indictment, can be discharged under the provisions of this act; but if the offence be bailable, he may be let to bail, and if the offence be not bailable, he shall be remanded forthwith." This identical section has been carried under the Habeas Corpus Act throughout the revisions to and including the revision of 1949, and is now Section 532.450.
This section was considered and construed by the Supreme Court in the early case of In re Spradlend, 38 Mo. 547, 548. Petitioner sought, by habeas corpus, to be discharged from the custody of the jailer of St. Louis County who was confining him in that county to answer an indictment pending in the Circuit Court of Iron County on a charge of murder. He alleged that he had not been brought to trial within the number of terms of court required by the statute. The court said: "The application (for discharge) should be made to the Iron County Circuit Court. Moreover, no person can be discharged under the Habeas Corpus Act who is imprisoned on an indictment, or by virtue of process or commitment to enforce such indictment — R.C. 1865, ch. 155, Sec. 38." (Now Section 532.450.) This is the only case in Missouri to which our attention has been called, or which we have been able to find, where a defendant sought to be discharged, by habeas corpus, from an indictment because he had not been brought to trial within the time prescribed by statute. There are a large number of reported cases in which the defendant raised the question of his right to such discharge by a motion in the court where the case was pending, which motion was overruled, and the defendant was convicted, and on appeal assigned the overruling of his motion as error. Some of such cases are: State v. Nolan, Mo.Sup., 171 S.W.2d 653; State v. Hicks, 353 Mo. 950, 185 S.W.2d 650; State v. Woods, supra.
We do not mean to hold that appeal, after conviction, is the only remedy under every set of facts or under all circumstances. In State ex rel. Stevens v. Wurdeman, 295 Mo. 566, 246 S.W. 189, the defendant raised the same question by an original proceeding in prohibition filed in the Supreme Court against the circuit judge and prosecuting attorney. In that case the court said, 295 Mo. at page 580, 246 S.W. at page 192: "Relator briefs in extenso the point of prohibition, being the proper and only adequate remedy. Respondents in their brief do not question the remedy, and hence this matter drops out of the case, unless the remedy sought was so patently against the law that this court would feel called upon to take up the matter upon its own motion. * * * Under authorities cited we think it is a well-founded action." In the opinion the court did not discuss or decide whether, under the facts, prohibition was the only adequate remedy, but it did hold that it was a proper remedy because of the great number of indictments (76) pending against the defendant at that time.
Certainly prohibition against the judge of the court in which the case is pending and the prosecuting attorney would be a more appropriate procedure than an ex parte proceeding in habeas corpus against the sheriff who, at most, merely has the custody, actual or constructive, of the defendant.
The decisions of the courts in the various states are in irreconcilable conflict relative to the manner in which the question of a defendant's right to discharge under an indictment for which he has not been brought to trial within the time specified by the Constitution or statutes of the respective states. may be presented. They all seem to agree that the question may be properly raised on appeal where the defendants' motion for discharge has been overruled in the trial court, but they differ on how the question may be raised by original remedial writs. In some states mandamus is held to be the proper remedy; in others, it may be raised by habeas corpus, and, in others, by prohibition. For a collection of cases on this subject, see 58 A.L.R.p. 1510 et seq. We think these divergent views are due, in part, to the differences in the statutes of the respective states. But it would serve no useful purpose to undertake an analysis of such statutes and decisions.
The petitioner also challenges the sufficiency of the indictment to charge any offense under the law, and contends that he is entitled to raise such question by habeas corpus. It is true if an indictment is void or attempts to charge a crime unknown to the law, the court has no jurisdiction of the subject matter or of the party, and such a question may be raised by habeas corpus. Ex parte Slater, 72 Mo. 102; Ex parte Neet, 157 Mo. 527, 57 S.W. 1025. However, we have examined the indictment in the instant case and conclude it is not void or that it attempts to charge a crime unknown to the law. It is unnecessary to lengthen this opinion by a detailed discussion of the indictment. The trial court has also passed on this question.
It is our conclusion, under the record in this case, that habeas corpus is not the proper procedure to present the question of petitioner's right to discharge for failure to be brought to trial within four terms of court.
It follows that our writ should be quashed and the petitioner remanded to the custody of the sheriff.
All concur.