Summary
In Billings, this Court explained, "If a circuit court issued such a writ... it is equivalent to a warrant for an arrest.
Summary of this case from State ex rel. Zimmerman v. DolanOpinion
May 31, 1929.
1. TRIAL: After Sentence: Upon Prior Indictment. After sentence to imprisonment for a felony defendant can be tried upon a prior indictment or information. [Following State ex rel. Meininger v. Breuer, 304 Mo. 381, 264 S.W. 1, and overruling any ruling to the contrary in Ex parte Meyers, 44 Mo. 279; State v. Watson, 95 Mo. 411; State v. Shierhoff, 103 Mo. 47; State v. Buck, 120 Mo. 479; State v. Wear, 145 Mo. 162; State v. Bell, 212 Mo. 130; State v. Barnes, 274 Mo. 625, 204 S.W. 267; State ex rel. Stevens v. Wurdeman, 295 Mo. 566, 246 S.W. 189.]
2. TRIAL: After Sentence: Upon Prior Indictment: Imprisonment: Constitutional Guaranty: Speedy Trial. There is no constitutional or statutory provision prohibiting the trial of a defendant during the time of his incarceration in the penitentiary, and the guaranty of the Constitution of a speedy trial makes no exception of a defendant so imprisoned. A defendant in prison under sentence may be taken by the State from the penitentiary and tried for an offense committed prior to his incarceration. To hold otherwise would be to make of the penitentiary a shelter for criminals.
3. ____: ____: ____: Custody. A convict in the penitentiary under sentence for a felony is in the custody of the State, and none of his constitutional or statutory rights is violated when the State changes its custody from the penitentiary to the circuit court wherein he stands charged with a different offense by information or indictment filed prior to his conviction. While absent from the penitentiary he is still in custody under the sentence.
4. HABEAS CORPUS: Dependence upon Statute. The Supreme Court has authority, in the absence of legislative enactment, to grant a writ of habeas corpus. Its authority to grant such writs is conferred by the Constitution, and cannot be destroyed or curtailed by legislative act. And there is no statute which undertakes to regulate the writ of ad prosequendum; the statutes regulate only the writ of ad subjiciendum.
5. ____: Petition: Challenge: Time of Trial. Where the writ of habeas corpus calls for the body of an imprisoned convict in order that he may be put upon trial under indictments presented prior to his sentence, the petition is not defective because it does not state that the time fixed by statute during which he may be tried under such indictments has not expired. That is a question for the trial court to determine. If he is not placed upon his trial within the time fixed by statute, he may there move for his discharge, and unless he does so move the right is waived.
6. ____: Respondent: Warden of Penitentiary. The commissioners of the Department of Penal Institutions need not be made parties to a writ of habeas corpus for the deliverance of a convict in the penitentiary to the sheriff in order that he may be tried upon indictments presented prior to his sentence. He is in custody of the warden, and the warden alone is the proper respondent; and particularly so, where the warden makes return that the prisoner is in his custody and produces him in court.
Corpus Juris-Cyc. References: Convicts, 13 C.J., Section 14, p. 919, n. 19. Criminal Law, 16 C.J., Section 800, p. 443, n. 49; Section 810, p. 447, n. 18. Habeas Corpus, 29 C.J., Section 116, p. 117, n. 34; Section 153, p. 141, n. 66; Section 158, p. 143, n. 13.
WRIT AWARDED.
James V. Billings for petitioner.
(1) Habeas corpus is the proper remedy of the petitioner under the facts. (a) The Supreme Court has express power to issue the writ of habeas corpus, and to hear and determine same. Sec. 3, Art. VI, Mo. Constitution; In re Letcher, 269 Mo. 140; Ex parte Bethrum, 66 Mo. 545; In re Hagan, 295 Mo. 435. (b) The writ issued at common law to remove from confinement in one county a prisoner to another county. Re Welton, 1 Cromp J. 459, 1 Tyrw. 385; Reg. v. Peacock, 12 Cox C.C. 21; Reg. v. Day, 3 Fost. F. 526; Ex. P. Bollman, 4 Cranch (U.S.) 75, 97, 2 L.Ed. 554; 3 Bl. Comm. 129, 130; State v. Wilson, 38 Conn. 126; People v. Flynn, 7 Utah, 378, 26 P. 1114; Ex parte Ah Men, 77 Cal. 202, 19 P. 380; 15 Am. Eng. Ency. Law (2 Ed.) 191; Ponzi v. Fessenden, 258 U.S. 255, 264, 66 L.Ed. 607, 22 A.L.R. 879; Com. v. Ross, 28 Pa. Co. Ct. 276; Flagg v. State, 11 Ga. App. 40; Rigor v. State, 101 Md. 465, 61 A. 631. (c) The writ of habeas corpus is a proper proceeding to remove a convict from the penitentiary to be put upon trial. Rigor v. State, 101 Md. 465, 61 A. 631; Flagg v. State, 11 Ga. App. 40; Com. v. Ross, 28 Pa. Co. Ct. 276; Ponzi v. Fessenden, 258 U.S. 255, 264; State v. Wilson, 38 Conn. 126; People v. Flynn, 7 Utah 378, 26 P. 1114; Ex parte Ah Men, 77 Cal. 202, 19 P. 380; State ex rel. v. Breuer, 304 Mo. 381, 264 S.W. 1; Article 6, Chap. 13, R.S. 1919, contains no provision prohibiting the pursuance of the writ herein. It refers only to the form of the writ known at common law as habeas corpus ad subjiciendum, and habeas corpus cum causa. The statutes have no application to the form of the writ herein authorized by the common law. Ex parte Bethrum, 66 Mo. 545; In re Hagan, 295 Mo. 435. (2) The person accused has a constitutional right to a speedy trial. Sec. 22, Art. II, Mo. Constitution. For the enforcement of said provision, the Legislature has limited the time in which indictments may be filed, and further provided that same must be tried within a certain number of terms. Sec. 3737, R.S. 1919; State v. Thompson, 155 Mo. 307; Secs. 4040, 4042, R.S. 1919; State v. Wear, 145 Mo. 162; State ex rel. Stevens v. Wurdeman, 295 Mo. 566. (3) There is no constitutional or statutory provision prohibiting the prosecution of indictments for crime pending against the accused who is undergoing sentence. The penitentiary is not a sanctuary for crime. No immunity has been given a convict. State ex rel. v. Breuer, 304 Mo. 381; State v. Connell, 49 Mo. 282; Ex parte Allen, 196 Mo. 226. (4) The overwhelming weight of authority holds that a convict undergoing sentence may be prosecuted upon indictments for felony committed prior to his incarceration. 13 C.J. 919; 41 L.R.A. 1095, and note; Simpson v. State, 56 Ark. 8; Peo. v. Majors, 65 Cal. 138; Flagg v. State, 11 Ga. App. 37; Peri v. Peo., 65 Ill. 17; Huffaker v. Com., 124 Ky. 115; Rigor v. State, 101 Md. 465, 61 A. 631; Singleton v. State, 71 Miss. 782; State v. Tranmer, 154 Pac. (Nev.) 80; Ex. P. Tranmer, 35 Nev. 56, 126 P. 337; State v. Fayetteville, 6 N.C. 371; Henderson v. James, 52 Ohio St. 242; Com. v. Raymunno, 219 Pa. 204, 68 A. 184; Com. v. Ross, 28 Pa. Co. 276; Brown v. State, 50 Tex.Crim. 114; Coleman v. State, 35 Tex.Crim. 404; Clifford v. Dryden, 31 Wn. 545, 72 P. 96; State v. Keefe, 17 Wyo. 277, 98 P. 122; State ex rel. v. Breuer, 304 Mo. 381, 264 S.W. 1.
Otto Potter for defendant Stocks.
(1) The petition does not state a cause of action. The writ of habeas corpus is a writ of right, but it is not a writ of course, and the Legislature may make needful and reasonable regulations in regard to the exercise of the writ so long as they do not impair its efficiency. Ex parte Guame, 162 Mo. 390. The Legislature has provided that where a person is confined on a charge of crime an application for his release shall be first made to the judge of the circuit court of the county in which the applicant is held in custody. Sec. 1944, R.S. 1919. The court will take judicial notice of the fact that the prisoner, Henry Stocks, is confined at the penitentiary located in Cole County. The application for the release of Henry Stocks should therefore have been first filed in the Circuit Court of Cole County, or good and sufficient statutory reasons for failing to apply to said circuit court should have been pleaded in the petition. State ex rel. Aull v. Field, 112 Mo. 554; Ex parte Guame, 162 Mo. 390;. Ex parte Schaffener, 173 Mo. App. 403; State ex rel. Gentry v. Westhues, 315 Mo. 678; Ex parte Tracy, 249 U.S. 551, 63 L.Ed. 768. (2) The petition fails to state a cause of action for the reason that it fails to show that the prisoner can now be legally tried in the Circuit Court of Dunklin County on the indictments returned at the February term, 1928. Dunklin County is a part of this circuit as set out in Section 2521, Laws 1927, page 155, provides for three terms of court annually in Dunklin County. If, therefore, the prosecuting attorney desired to try the prisoner on any of said indictments he was compelled to do so within the time provided by Sections 4040 to 4043, R.S. 1919. If under the provisions of Section 4043, Henry Stocks could have been tried during the third term after he was indicted, that term ended with the February term, 1929, and Exhibit A filed with the petition herein shows that the trials of all of said indictments were continued at the February term, 1929. State v. Wear, 145 Mo. 162. The application for habeas corpus should affirmatively show and allege that he can be lawfully tried on the indictments pending against him, and having failed to make such showing, the writ herein should be denied. (3) The writ herein should be denied because no service has been had upon the Department of Penal Institutions of the State, which alone has the custody of and the supervision and control of the prisoner. Service herein has been had only upon Rudolph, who is alleged to be the warden of the penitentiary. The Department of Penal Institutions is a corporation whose chief officer is the director of penal institutions; he is chairman of the board of directors and the president of the corporation. Secs. 12626, et seq., Laws 1921, pp. 548 to 554. The duties of the warden are set out in Sec. 12472, R.S. 1919, which provides simply that he shall exercise general control and supervision over the government, discipline, and police regulations of the penitentiary in accordance with the orders, rules and regulations of the board. He has no individual control over the prisoner, except as provided in said section, and the said prisoner is not under his control, and he has no right to surrender said prisoner to any person or to transfer him to any place except under orders of the director of penal institutions and the board of governors thereof. (4) The writ should not issue for the reason that the Circuit Court of Dunklin County has no jurisdiction to try a prisoner confined in the penitentiary for a crime committed prior to his conviction therefor and on an indictment or information filed against him prior to his conviction. When a person is sentenced to imprisonment in the penitentiary it is the duty of the clerk of the court in which the sentence was passed to forthwith deliver a certified copy thereof to the sheriff of the county, who shall, without delay, cause such convict to be transferred to the penitentiary, Sec. 4061, R.S. 1919. The circuit court has no jurisdiction over the prisoner after an appeal has been granted or after the defendant is confined in the penitentiary on a plea of guilty. Ex parte Foister, 203 Mo. 690. The jurisdiction of a prisoner confined in the penitentiary has passed from the circuit court when the prisoner enters the prison. State v. Buck, 120 Mo. 496. If any trial court has jurisdiction thereafter, it is the circuit court of the county in which such prisoner is confined. The Supreme Court of Missouri in an unbroken line of decisions for over fifty years held that a defendant could not be tried on a second charge after he had been sentenced on a prior charge. Ex parte Meyer, 44 Mo. 279; State v. Watson, 95 Mo. 411; State v. Schierhoff, 105 Mo. 50; State v. Buck, 120 Mo. 479; State v. Wear, 145 Mo. 164; State v. Bell, 212 Mo. 130; State v. Barnes, 274 Mo. 628; State ex rel. Stevens v. Wurdeman, 295 Mo. 584. The only opinion of the Supreme Court in apparent conflict with the foregoing decisions is the case of State ex rel. Meininger v. Breuer, 304 Mo. 381, 264 S.W. 1. In this case Meininger applied for a writ of prohibition to prevent the defendant, who was judge of the circuit court, from trying the relator on a second charge after he had been tried and sentenced on a previous one. This court in a divided opinion held that the trial court had jurisdiction to proceed with the trial of Meininger, who was then out on bond pending an appeal in the first case. The opinion is clearly out of line with the former decisions of this court, and in any event is not an authority for the issuance of a writ of habeas corpus to take a prisoner out of the penitentiary for the purpose of trying him on an indictment returned prior to his first sentence. (5) There is no authority for the issuance of the writ in this case under the statutes of the State regulating the writ of habeas corpus. It may be contended that the Supreme Court has the inherent power to issue the writ of habeas corpus in the absence of statutes, and on such terms as the court may impose, but this doctrine should not be applied herein. (a) Because the statutes are not silent, but make full and ample provision for the issuance of the writ of habeas corpus. (b) Because the writ is sought in this case not to liberate the prisoner but to incarcerate him; the application does not allege that he is illegally confined, but, on the contrary, alleges and the return shows that he is legally confined in the penitentiary. Here the issuance of the writ is sought for a purpose wholly inconsistent with the original and historic purpose of the writ. The prisoner is not to be given his freedom, but is to be transferred from one place to another in order that he may be placed upon trial on another charge. This court may have the inherent power to issue the writ to test the legality of the detention of one person by another, but it does not have the inherent power to issue the writ for an entirely different purpose and as a mere incident to aid or bring about the trial of another case. The latter proceeding is clearly an abuse of the original and historic purpose of habeas corpus and is not proper, save and except in pursuance of some express statute. The statutes expressly provide that the writ shall be refused "if it shall appear that he is detained in custody . . . by virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction, or of any executions issued upon such judgment or decree." Sec. 1907, R.S. 1919.
Habeas Corpus. On March 6, 1928, Henry Stocks pleaded guilty in the Circuit Court of Dunklin County to a charge of embezzlement, and was sentenced to five years' imprisonment in the penitentiary. Thereafter, and on the same day, he was arraigned in said court upon charges contained in twenty-three indictments, each charging him with the commission of a felony, to all of which he pleaded not guilty. Thereafter, and on the same day, a certified copy of the sentence was delivered by the clerk of said court to the sheriff of said county, who immediately transported Stocks from the Dunklin County jail to the penitentiary, where he is now serving said sentence.
Upon demand, the warden of the penitentiary refused to deliver Stocks to the sheriff to be taken to Dunklin County for trial on said indictments. While the warden so refused, he is neutral in this proceeding, for by return to our writ he only states that he holds the defendant Stocks under a commitment by the circuit court of said county. It is the defendant Stocks who is resisting efforts to try him. By so doing he is resisting the speedy trial guaranteed to him by the Constitution. [Sec. 22, Art. II, Mo. Constitution.] No doubt he has in mind Sections 4040 and 4042, Revised Statutes 1919, wherein it is provided that he shall be brought to trial before the end of certain terms of court, otherwise he must be discharged. [State v. Wear, 145 Mo. 162, 46 S.W. 1099; State ex rel. Stevens v. Wurdeman, 295 Mo. 566, 246 S.W. 189; State v. Harp, 6 S.W.2d 562; State v. Nelson, 279 S.W. 401.]
I. Defendant Stocks contends that after sentence he cannot be tried on a prior information or indictment, citing Ex parte Meyers, 44 Mo. 279; State v. Watson, 95 Mo. 411, 8 Trial After S.W. 383; State v. Schierhoff, 103 Mo. 47, 15 S.W. Sentence. 151; State v. Buck, 120 Mo. 479, 25 S.W. 573; State v. Wear, 145 Mo. 162, 46 S.W. 1000; State v. Bell, 212 Mo. 130, 111 S.W. 39; State v. Barnes, 274 Mo. 625, 204 S.W. 267; State ex rel. Stevens v. Wurdeman, 295 Mo. 566, 246 S.W. 189.
On that question those cases were, in effect, overruled in State ex rel. Meininger v. Breuer, 304 Mo. 381, 264 S.W. 1. In that case we held that a circuit court had jurisdiction to try a defendant for felony after he had been sentenced to the penitentiary. Such is the universal rule. Prior to the Meininger decision Missouri stood alone in holding that a defendant under sentence could not be tried on a prior information or indictment. [41 L.R.A. (N.S.) 1095 et seq.]
That the question may be at rest, we now overrule any statements in the cases cited by defendant Stocks or in other cases decided by this court holding or tending to hold that a person after sentence for felony cannot be tried on a prior information or indictment.
After the decision in State ex rel. Meininger v. Breuer, supra, Meininger was tried and convicted while under bond pending an appeal from a prior judgment and sentence to the penitentiary. [State v. Meininger, 290 S.W. 1007.] There is no constitutional or statutory provision prohibiting the trial of a defendant during the time of his incarceration in the penitentiary, and the guarantee by the Constitution of a speedy trial makes no exception of a defendant so incarcerated. [Sec. 22, Art. II, Constitution.] If Meininger could be tried after sentence and while under bond, there is no reason why the defendant Stocks cannot be tried after sentence and during the service of time in the penitentiary. On principle there is no difference. Those interested will find this conclusion sustained by all the cases cited and reviewed in State ex rel. Meininger v. Breuer, supra, 304 Mo. l.c. 406-414. In the cases there reviewed all the courts hold that a convict may be taken by the State from the penitentiary and tried for an offense committed prior to his incarceration. To hold otherwise would make of the penitentiary a shelter for criminals.
In Commonwealth v. Raymunno, 68 Atl. l.c. 185, the Supreme Court of Pennsylvania said:
"On the prisoner's other contention not much ought to be said, for nothing can be said in support of it. At all times he was within the Commonwealth. By its process he had been committed to one of its penal institutions for a violation of one of its laws. It not only did not object to his being brought into the jurisdiction of one of its courts to answer a more serious charge than the one upon which he had been committed, but asked, at the instance of a district attorney representing it in his district, that his body should be produced, to be subjected to punishment upon a charge which he was called to answer, different and distinct from that for which he had formerly been convicted. The warden of the penitentiary having him in custody made no question as to the Commonwealth's right to take him away; and, under the circumstances, when he reached the jurisdiction in which he was to be tried for the most serious offense known to law, it was none of his concern how he got there. A prison is not a place of refuge for a criminal. It is for his punishment, to which he is involuntarily committed, and the same power that commits him can take him from it when in the interest of justice he should be transferred elsewhere to answer for his misdeeds."
In Rigor v. State, 61 A. 631, l.c. 634, the Supreme Court of Maryland said: "The penitentiary is not a place of sanctuary, and an incarcerated convict ought not to enjoy an immunity from trial merely because he is undergoing punishment on some earlier judgment of guilt."
In Ponzi v. Fessenden, 258 U.S. 254, l.c. 260, it is said: "One accused of crime, of course, cannot be in two places at the same time. He is entitled to be present at every stage of the trial of himself in each jurisdiction with full opportunity for defense. [Citing cases.] If that is accorded him, he cannot complain. The fact that he may have committed two crimes gives him no immunity from prosecution of either."
In Flagg v. State, 11 Ga. App. l.c. 40, the court said:
"When a convict is serving a penal sentence he is in the custody of the State or its authorities. In a sense he is the property of the State; his labor belongs to the State. Having forfeited his right to freedom, he is completely under the dominion and control of the State, with no rights save those which the law in its humanity may accord him. It would indeed be remarkable if the State, which has full power to reach out and bring into court one of its citizens while in the full enjoyment of his liberty, could not find a process by which one of its convicts could be brought into court for any purpose for which his presence could lawfully be required. We have not the slightest doubt of the full and complete power of courts to adopt appropriate measures to obtain a convict's presence in any proper case."
Being in the custody of the State, no constitutional or statutory right of the defendant Stocks is violated by the State changing its place of custody from the penitentiary to the circuit court room of Dunklin County. While absent from the penitentiary for trial he is in custody under the sentence.
In this connection defendant Stocks contends this court is without authority to grant a writ of habeas corpus in Authority the absence of an authorizing statute. to Grant Writ.
We are not dependent upon legislative enactment. Such authority is given by the Constitution.
In re Hagan, 295 Mo. 435, l.c. 440, we said:
"This constitutional power to issue the writ is absolute. It is a grant of original and concurrent jurisdiction. There is no qualification or restriction in the organic law. Without a restriction in the organic law, the Legislature is without power to limit our jurisdiction. Our jurisdiction is one of a broad and unrestricted constitutional grant, and a legislative restriction would be violative of this grant. . . . Under the Constitution, this court is given the right to grant writs of habeas corpus. No legislative act can take away or curtail this constitutional grant. It would be useless for the people (in the Constitution) to grant this court a right, if the Legislature could later destroy the right. What is granted by the Constitution cannot be curtailed or destroyed by legislative act."
The writ at common law includes several forms. Among the number: (a) Habeas Corpus ad subjiciendum (you have the body to submit); (b) Habeas Corpus ad prosequendum (you have the body to prosecute). [21 Cyc. 353; Burril L. Dict.; 3 Blackstone Comm. 129-130.]
Our code only regulates the use of the principal writ (Habeas corpus ad subjiciendum). The petition herein does not call for the principal writ, but for a writ ad prosequendum; therefore, we are confronted with no statute.
The contentions are overruled.
II. Defendant Stocks challenges the petition for the reason it is not alleged therein that the time fixed by statute for a trial of said defendant has not expired. This question is for the trial court. If he has not been tried within the time fixed by Trial Within statute, he may move for his discharge; and unless Statutory he does so, the right is waived. [Secs. 4040 to Period. 4043, R.S. 1919; State v. Cox, 65 Mo. 29 l.c. 32.] Furthermore, petitioner's Exhibit A, referred to by said defendant, does not show that the case was continued from the February term, 1929, to the July term, 1929. The exhibit does show it was continued, but it may have been continued to an adjourned term. In that event the continuance is not a continuance within the meaning of the above sections. [State v. Farrar, 206 Mo. App. 339, l.c. 344, 227 S.W. 1078; State v. Riddle, 179 Mo. 287-292, 78 S.W. 305.] The contention is overruled.
III. Defendant Stocks next contends the commissioners of the department of penal institutions should be parties Respondent. to this proceeding, for the reason they and not the warden have custody of the defendant.
The warden has "general control and supervision over the government, discipline and police regulations of the penitentiary in accordance with the orders, rules and regulations of the board." [Sec. 12472, R.S. 1919.] He could not have such control without having the custody of the inmates. Furthermore, he made return that he had the custody of the defendant and produced him in court. This forecloses the question.
While not ruling the question, some observations on the authority of circuit courts to issue writs of habeas corpus ad prosequendum will not be amiss. If a circuit court issued such a writ, no question of conflicting or territorial Jurisdiction. jurisdiction would be involved. The writ is equivalent to a warrant for an arrest. It should be executed as warrants are executed. [Secs. 3909, 3911 and 2814, R.S. 1919.] Our courts have power to issue all warrants which may be necessary in the exercise of their respective jurisdictions. [Sec. 2341, R.S. 1919.]
In Ex parte Marmaduke, 91 Mo. 228, l.c. 251, 4 S.W. 91, it is said:
"Independent of any such statute (Sec. 2341), courts, having been created for the purpose of administering public justice, have, in consequence of their being courts, the inherent right to effectuate their jurisdiction by all process necessary for that purpose. . . . The rule being, that, whenever power or jurisdiction is conferred, everything to make either effectual is implied. [1 Kent Com. 463 and cas. cit.]"
In re Edward Talbot, 8 Ohio Dec. 744, l.c. 747, it is said:
"A court acquires jurisdiction by its own process. If the process of the court be executed upon the person or thing concerning which the court is to pronounce judgment, jurisdiction is acquired. The writ draws the person or thing within the power of the court; the court once having by its process acquired the right to adjudicate upon a person or thing, it has what is called jurisdiction. This power of jurisdiction is only acquired by its process."
In Commonwealth v. Ross, 13 Pa. Dist. Rep. 493, it is held that a district court has authority to issue such a writ to cause a defendant who is confined in the penitentiary outside of the territorial jurisdiction of the court to be brought before it for trial on an indictment for felony.
In Ex parte Marmaduke, supra, the St. Louis Criminal Court issued a writ of habeas corpus ad testificandum, which was served in Cole County on the warden of the penitentiary. The authority of that court to issue the writ was not questioned.
It follows the warden of the penitentiary is ordered to deliver Henry Stocks to the Sheriff of Dunklin County, to be taken there for trial on said indictments. It is further ordered that said sheriff return Henry Stocks to the penitentiary on the termination of said trials. All concur.