Buckley v. Hall

• Decision Date: 15 December 1908
• Citation: 114 S.W. 954,215 Mo. 93
• Parties: BUCKLEY v. HALL, Warden.
• Court: Missouri Supreme Court

114 S.W. 954

215 Mo. 93

BUCKLEY v. HALL, Warden.

Supreme Court of Missouri, Division No. 2.

December 15, 1908.

1. INDICTMENT AND INFORMATION (§ 47) — REQUISITES OF INFORMATION—ALLEGATION OF PRELIMINARY EXAMINATION.

The fact that accused had been accorded a preliminary examination is not jurisdictional and need not be alleged in the information.

2. CRIMINAL LAW (§ 224)—PRELIMINARY EXAMINATION —OBJECTIONS.

Failure to accord accused a preliminary examination as provided by law only goes to the regularity of the proceedings, which can be taken advantage of by directing the attention of the court thereto by appropriate motion.

3. HABEAS CORPUS (§ 4)—GROUNDS—IRREGULARITIES —PRELIMINARY EXAMINATION.

Where the action of the court on the question of the failure to accord accused a preliminary examination, to which its attention had been appropriately called, was adverse to accused, the ruling could be preserved by a bill of exceptions and was reviewable by the Supreme Court on appeal or writ of error, but not on habeas corpus, which cannot be used as a substitute for an appeal or a writ of error.

Habeas corpus by John Buckley against Matt W. Hall, Warden of the Missouri Penitentiary, for the discharge of the petitioner from the penitentiary. Discharge denied.

This is an original proceeding in this court by the petitioner for discharge from the penitentiary of this state, where he is now confined in pursuance of a sentence and judgment of the circuit court of the city of St. Louis. The petition, as well as the return, discloses: That the petitioner was convicted of the crime of robbery in the first degree, at the February term, 1908, of the circuit court of the city of St. Louis, and that his punishment was assessed at a term of five years in the penitentiary of this state; that judgment was pronounced and sentence passed in accordance with the verdict; and that the petitioner is now a prisoner in the Missouri state penitentiary, and is in the custody of Mathew W. Hall, warden of the state penitentiary, in pursuance of the judgment and warrant of commitment of said circuit court. It is charged in the petition that the circuit court of the city of St. Louis was without jurisdiction to render the judgment of conviction as heretofore indicated. The jurisdiction of the court is challenged upon two grounds: First, that the information upon which the defendant was tried and convicted did not show upon its face that the petitioner had been accorded a preliminary examination as required by the act of 1907. Laws 1907, p. 243. Second, that the petitioner was accorded a pretended preliminary examination in the court of general sessions of the city of St. Louis; but that, by a recent decision of this court, the act of the General Assembly by which said court of general sessions was created and established was adjudged unconstitutional and void. Hence it is claimed by the petitioner that he was not in fact accorded a preliminary examination under the provisions of said act of 1907, and that the proceedings of the court in the trial and conviction of the defendant were without jurisdiction and void, and that the imprisonment of the petitioner is without authority of law. Then follows the ordinary prayer for discharge from custody. This is a sufficient indication of the facts disclosed by the petition, as well as the return, to enable us to determine the legal propositions involved.

Thos. J. Rowe, Jr., and Henry Rowe, for petitioner. Herbert S. Hadley, Atty. Gen., and John Kennist, Asst. Atty. Gen., for respondent.

FOX, P. J. (after stating the facts as above).

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