State ex rel. Orr v. Latshaw

• Decision Date: 09 February 1922
• Citation: 237 S.W. 770,291 Mo. 592
• Parties: THE STATE ex rel. CAMERON L. ORR, Prosecuting Attorney, v. RALPH S. LATSHAW, Judge of Criminal Court of Jackson County
• Court: Missouri Supreme Court

237 S.W. 770

291 Mo. 592

THE STATE ex rel. CAMERON L. ORR, Prosecuting Attorney, v. RALPH S. LATSHAW, Judge of Criminal Court of Jackson County

Supreme Court of Missouri

February 9, 1922

Writ granted.

Cameron L. Orr pro se.

(1) When a court undertakes to act in excess of its jurisdiction prohibition is the proper remedy. State ex rel. v Gates, 190 Mo. 553; State ex rel. v. Ross, 122 Mo. 464; State ex rel. v. Weithaupt, 238 Mo. 155; State ex rel. v. Seehorn, 246 Mo. 585; State ex rel. v. Board of Trustees, 268 Mo. 168. (2) The information in the case of State v. Hammer was in proper form and charged a crime in the language of the statute. After judgment and sentence, it cannot be assailed for reasons which might have been good if raised by a motion to quash before judgment. State v. Lawson, 239 Mo. 591; State v. Runzi, 105 Mo.App. 327; State v Brannan, 206 Mo. 640; 16 Corpus Juris, p. 401, 403. (3) After the close of the term of the Criminal Court of Jackson County, at which term judgment was entered and sentence given in the case of State v. Hammer, it was beyond the power of and in excess of respondent's jurisdiction, to set that judgment aside, or interfere with it in any manner. State v. Williams, 147 Mo. 19; 16 C. J. 1326; United States v. Mayer, 235 U.S. 55; Salem v. People, 41 Colo. 317; People v. Wilmot, 254 Ill. 554; State v. Dalton, 109 Tenn. 544; State ex rel. v. Walls, 113 Mo. 42; State ex rel. v. Ellison, 267 Mo. 321.

Ralph S. Latshaw, respondent.

(1) Prohibition will not be granted where adequate relief can be had on appeal or writ of error. Sec. 4099, R. S. 1919; State ex rel. U. Ry. Co. v. Southern Ry. Co., 100 Mo. 59; State ex rel. Johnson v. Withraw, 108 Mo. 1; State ex rel. Alderson v. Moehlenkamp, 133 Mo. 134; State ex rel. v. Evans, 184 Mo. 632; State ex rel. Holtcomp, 245 Mo. 669; In re Breck, 252 Mo. 327; 19 Am. & Eng. Ency. Law, 256. (2) The effort to invoke prohibition to accomplish this review is an evasion of and in violation of Rule 32 of this court which says that "No original remedial writ except habeas corpus, will be issued by this court in any case wherein adequate relief can be afforded by an appeal or writ of error, or by application for such writ to a court having in that behalf concurrent jurisdiction." Relator's application for writ of prohibition herein again and further violates Rule 32 of this court wherein it is provided that no original remedial writ except habeas corpus will be issued by this court in any case where adequate relief can be had by application for such writ to a court having in that behalf concurrent jurisdiction. "The circuit court shall exercise a superintending control over criminal courts." Sec. 23, Art. VI. Constitution of Missouri; Sec. 2058, R. S. 1919. Under this section of the Constitution, writs of certiorari, mandamus and prohibition are issuable by the circuit court in the exercise of superintending control over criminal courts in this State. State v. Daniels, 66 Mo. 192. State ex rel. v. Laughlin, 73 Mo. 443; St. Louis County Court v. Sparks, 10 Mo. 117; State v. Daniels, 66 Mo. 192; State ex rel. v. Edwards, 162 Mo. 660; State ex rel. v. Mosmam, 231 Mo. 474. (3) Sec. 4081, R. S. 1919, is declaratory of the common-law writ of coram nobis and relief thereunder does not expire with the trial term. Ex parte Gray, 77 Mo. 160; Cross v. Goult, 131 Mo.App. 585; 5 Ency. Plead. & Prac. 26, 27; Powell v. Gott, 13 Mo. 329; Craig v. Smith, 65 Mo. 536; Latshaw v. McNees, 50 Mo. 384; Ex parte Page, 49 Mo. 291; State ex rel. v. Riley, 219 Mo. 681; Shuck v. Lawton, 249 Mo. 175; State v. Dale, 282 Mo. 669; Gould v. United States, U. S. Adv. Aps. 1920-1921, 311; Weeks v. United States, 232 U.S. 383, 58 L.Ed. 652.

ELDER, J. James T. Blair, C. J., and Graves and Walker, JJ., concur; Higbee, J., concurs in separate opinion; David E. Blair, J., not sitting; Woodson, J., absent.

OPINION

In Banc.

Prohibition.

ELDER J.

-- This is an original proceeding for a writ of prohibition. Relator is the Prosecuting Attorney of Jackson County, and respondent is Judge of Division No. 1 of the Criminal Court of Jackson County. The remedy sought is to prevent respondent from arresting and setting aside a judgment and sentence entered in a cause entitled, "State of Missouri v. Wilbur J. Hammer," begun in the aforesaid criminal court. Upon the filing of the petition a preliminary rule was granted as prayed. Respondent made no return, but has entered his appearance, and filed a statement, brief and argument in which it is conceded that relator's statement of the record in the said cause is substantially correct.

Briefly, the facts are as follows: On August 26, 1921, at the April term, 1921, of the Criminal Court of Jackson County, relator filed an information against one Wilbur J. Hammer, charging him with the "detestable and abominable crime against nature." On the same day said Hammer, being arraigned, entered a plea of guilty to the said charge, before respondent, who accepted the said plea and sentenced him to a term of five years in the State Penitentiary. According to the record no motion for new trial or in arrest of judgment seems to have been filed during the said April term, 1921. Thereafter, on the 25th day of October, 1921, after the expiration of the April term, and during the September term, 1921, of said criminal court, the said Hammer filed a motion to set aside the sentence imposed, and to grant him a new trial, which motion is as follows:

"Comes now the above named defendant, and moves the court to set aside the sentence in said cause and grant a new trial for the following reasons:

"That said conviction and sentence was obtained by the police by unfair means, such as brutality, infliction of bodily injuries, threats to give defendant 'worse than Chester got,' and coercion, on the part of one Antone Mouritson of the police department, in compelling defendant to sign his name to a purported confession made up by the said police, who refused to permit defendant to read same; that if said alleged confession contains any statements involving this defendant in degeneracy or the commission of the crime against nature, at any time, defendant repudiates same; and if said sentence is set aside, as recommended by Judges Buckner, Porterfield, Pence, Hall, Lucas, Southern, Johnson and Landon of the Parole Board, without dissenting voice, and this defendant is given a fair trial, it will be impossible for the police to fasten the crime upon him with which he is charged; that while still covered with bruises from the fists and shoes of said Antone Mouritson, a police officer, and with a great patch of bruise on his face, the defendant was led before the Hon. Judge of Division 1 of this court, by the said police, and asked if said statement contained defendant's signature, which signature defendant could not truthfully deny; and that on account of ignorance and inexperience in such matters, and with the police threats hanging over him, and without counsel, the defendant was afraid to deny or to make known that same had been obtained by unfair means."

On October 26, 1921, the said motion was taken up and submitted to respondent, who made the following order, to-wit:

"State versus Wilbur J. Hammer.

"Motion for new trial filed by the defendant overruled, because not filed in time.

"The court of its own motion, as directed in Section 4081, Revised Statutes 1919, arrests the judgment in this case for the reasons:

"First. That the facts stated do not constitute a public offense in that the information filed herein does not inform the defendant of the nature and cause of the accusation as provided by Section 22, Article 2, of the Constitution of Missouri, in that no names of witnesses were made a part of said information by indorsement thereon, and said information does not apprise the defendant of the name of the party with whom he is alleged to have committed said offense, when the prosecuting attorney had information from the alleged confession as to who said party was.

"Second. That the verdict is insufficient to sustain a judgment because of the matters hereinbefore mentioned, and that no corpus delicti has been proven and that the confession submitted as evidence is shown to the court not to have been a free and voluntary admission of the defendant.

"Wherefore, the court being duly advised, arrests the judgment in said cause, and being of the opinion that there is reasonable cause to believe that the defendant can be convicted of an offense if properly charged, the court orders defendant to be recommitted to answer to a new information and inasmuch as the prosecuting attorney desires to apply to the Supreme Court for a writ of prohibition herein, the court withholds entry hereof until the 10th day of November, 1921, to allow the prosecuting attorney an opportunity to apply for a writ of prohibition herein."

Relator, alleging that the purpose and intention of respondent is in excess of his jurisdiction, has applied to this court for our writ of prohibition to prevent respondent from assuming jurisdiction and carrying into effect the order so made.

I. Respondent contends that the writ of prohibition will not be granted where adequate relief can be had on appeal or writ of error. As an abstract proposition of law this doctrine is not to be questioned. However, it has no application in the case at bar. Here the paramount issue is the question of respondent's jurisdiction. If he had jurisdiction to set aside the judgment and sentence pronounced against Hammer, then an appeal or writ of error might lie. But the authorities cited by respondent are not pertinent to the real question involved. Section 4099, Revised Statutes 1919, cited by respondent, assumes that the...