OPINION
ATWOOD
This is an original proceeding by the Habeas Corpus
Act to procure the discharge of Alvin Bass, who is alleged to
be unlawfully restrained by Leslie Rudolph,
Warden of the Missouri State Penitentiary. Our writ was
issued on petitioner's duly verified application,
production of the body was waived, and verified return to
said writ was filed by said warden stating that he held the
body of said Alvin Bass "by virtue and under the
authority of a commitment issued by the Juvenile Court of
Greene County, Missouri, during the January Term, 1931, and
dated the 28th day of January, 1931; a certified copy of
which commitment is attached hereto and made a part of this
return." The petitioner did not plead to this return,
whereupon the warden filed motion for judgment on the
pleadings.
In Ex
parte Flournoy, 310 Mo. 355, 357, 275 S.W. 923, we said:
"The return and not the petition is the principal
pleading. [Ex parte Thornberry, 300 Mo. l. c. 674.] The
latter has performed its function when the writ is issued. It
is to the return, therefore, that a traverse or denial must
be made to the material facts set forth in the return, and
upon its being filed the case is at issue. Without the filing
of these pleadings no issue is presented, and only a
dismissal is authorized, unless, as at bar, a failure to
comply with the required procedure is ignored and the case is
heard on the allegations of the petition alone."
We have
also many times held that if the averments of the return are
not denied or contradicted by some appropriate pleading, the
facts set out in the return are to be taken as the ultimate
facts in the case, regardless of the allegations pleaded in
the petition. [State ex rel. v. Skinker (Mo. Sup.),
25 S.W.2d 472, 476; Schein v. Gallivan, 321 Mo. 268,
10 S.W.2d 521; Ex parte Knight, 308 Mo. 538, 540, 272 S.W.
922; Ex parte Thornberry,
300 Mo. 661, 666, 254 S.W. 1087, 1088; In re Tartar,
278 Mo. 356, 365, 213 S.W. 94; In re Breck, 252 Mo.
302, 319, 158 S.W. 843; Ex parte Durbin, 102 Mo. 100, 104, 14
S.W. 821; Ex parte Bryan, 76 Mo. 253.]
Looking
then to the return for the ultimate facts in this case we
find them in the certified copy of the commitment thereto
attached and made a part thereof, which is in fact a
certified copy of the judgment and sentence of the Juvenile
Court of Greene County, Missouri, rendered Saturday, January
24, 1931, in the case wherein the State of Missouri was
plaintiff and Alvin Bass was defendant, as follows:
"Now
on this day comes on for hearing the above entitled cause, on
information duly filed, in said court, charging, under oath,
that the said defendant, on the 30th day of December, 1930,
in the County of Greene, State of Missouri, violated the
criminal laws of said State, in that he did then and there
commit the crime of robbery in the first degree by means of a
dangerous and deadly weapon, the said defendant appearing in
open court in his own proper person, and his
counsel appearing in his behalf, and the parents of said
defendant, and the prosecuting attorney of said county, also
being present, and said defendant having talked to and
consulted with a friend and with his said attorney, and the
judge of said juvenile court having duly advised himself as
to the previous record of said defendant, and having
determined and directed that further steps, and the trial of
said defendant, herein, shall proceed against said defendant,
not as a delinquent, but under the general criminal law, and
said information having been read to said defendant, and said
defendant being now duly arraigned upon said information
charging him with the commission of the crime hereinabove
specifically stated, for his plea thereto says that he cannot
deny but that he is guilty in manner and form as he stands
charged in the said information and of this plea puts himself
upon the mercy of the court. Whereupon the said court, having
heard the plea of guilty aforesaid doth find that said
defendant is over the age of sixteen years, but under the age
of seventeen years; and also that the defendant is guilty as
charged in the said information, and doth fix and assess the
punishment of said defendant for said crime at imprisonment
in the State Penitentiary, at Jefferson City, Missouri, for
the period of twenty-five years from the 24th day of January
1931. And it is now by the court ordered that said defendant
stand committed unto the charge and custody of the probation
officer of this county to await the judgment and sentence of
said juvenile court herein.
"And
thereafter, on said day and date, come said defendant, his
said attorney, his parents, and the prosecuting attorney of
said county, each in his and her own proper person, here in
open court, whereupon said defendant is informed by the court
that he is adjudged guilty as charged in said information on
his confession to the crime of robbery in the first degree by
means of a dangerous and deadly weapon. And, being now asked
by said court if he has any legal cause to show why judgment
shall not be pronounced against him according to the general
law governing crimes, and no sufficient cause being shown
against it, it is therefore considered, adjudged, sentenced
and ordered by said juvenile court, that said defendant,
Alvin Bass, having pleaded guilty as aforesaid, be, and he
hereby is by said court sentenced to be, imprisoned in the
State Penitentiary at Jefferson City, Missouri, for the
period of twenty-five years from the 24th day of January,
1931, there to be confined, kept and treated in the manner
prescribed by law, until the sentence and judgment of the
court herein be complied with, or until said defendant shall
be otherwise discharged by due course of law. And it is
further adjudged and ordered by said court that the said
State have and recover of and from said defendant the costs
of this prosecution and that execution issue therefor; also
that the clerk of said court shall forthwith
make out and deliver to the probation officer of this county
a certified copy of this judgment of conviction and sentence,
duly certified by such clerk; and that said probation officer
in person or by a general and usual deputy shall without
delay cause said defendant to be transported to said
penitentiary and delivered to the keeper thereof."
The
grounds of the illegality of the prisoner's detention
stated in his application upon which our writ issued, and
which are now urged in his behalf, are as follows:
"1.
That the court in entering the dismissal of the proceedings
in said cause under the juvenile procedure divested the court
of all jurisdiction to further hear and determine the same,
and all proceedings had thereafter under the said information
signed by J. Will Webb, the Chief Probation Officer, was
illegal and void for want of jurisdiction, and for the
further reason that the court had directed that all
proceedings following the said dismissal should be under the
principles of procedure of the general criminal laws of the
State and was void.
"2.
All hearings by the court after the entry of the order and
direction that the proceedings be had under the general
criminal laws of the State were without jurisdiction and null
and void because no indictment was ever returned under
Article 2, Section 12, of the Constitution and the general
criminal laws of the State of Missouri, to clothe said
juvenile court with further jurisdiction as to the
subject-matter and the person of the defendant and no
information was filed by the prosecuting attorney of Greene
County, Missouri, in compliance with Article 2, Section 12,
of the Constitution and the general criminal laws of the
State of Missouri, and the information signed and verified by
J. Will Webb, Chief Probation Officer, filed in the juvenile
court and thereafter dismissed by said court, is void for the
reason that it does not comply with Article 2, Section 12, of
the Constitution and with the general criminal laws of the
State of Missouri, and under the procedure of the general
criminal laws of the State of Missouri, is wholly void and
fails to clothe the court with jurisdiction over the
subject-matter and the person of the defendant to hear and
try said cause.
"3.
That the sentence and commitment was in violation of Article
2, Section 30, of the Constitution of the State of Missouri,
in that it took from defendant his right to liberty without
due process of law."
The
warden's return does not show that the court entered a
dismissal of any proceedings in said cause under the juvenile
procedure, but it does show that the court "determined
and directed that further steps, and the trial of said
defendant, herein, shall proceed against said defendant, not
as a delinquent, but under the general criminal law." It
further appears that notwithstanding this determination and direction, the court, still sitting as the
juvenile court or division, continued to entertain
jurisdiction of the case, accepting defendant's plea of
guilty and finally sentencing and committing him to
imprisonment in the state penitentiary. This procedure is not
inconsistent with our ruling in State ex rel. v
Rutledge, 13 S.W.2d 1061, 1065, 321 Mo. 1090, that the
juvenile court or division has exclusive jurisdiction in all
cases in which persons under the age of seventeen years are
charged either with delinquency or...
