Ex Parte Cohen

• Decision Date: 12 February 1901
• Citation: 60 S.W. 1031,159 Mo. 662
• Parties: Ex parte COHEN.
• Court: Missouri Supreme Court

60 S.W. 1031

159 Mo. 662

Ex parte COHEN.

Supreme Court of Missouri, Division No. 2.

February 12, 1901.

HABEAS CORPUS — WRONG SENTENCE — PENITENTIARY — REFORMATORY SCHOOL.

Defendant pleaded guilty under three indictments for felonies, and was sentenced to three successive terms of imprisonment in the penitentiary. After the first term had expired, on his motion in the criminal court the judgments were set aside on the ground that he was under 16 years of age, and the sentences invalid, under Rev. St. 1889, § 3961, providing that, where any person convicted of a felony was under 16 years of age, he should be sentenced to the reformatory school. Held, under Rev. St. 1879, §§ 1996, 2659, providing that no person shall be discharged on habeas corpus for the reason that the judgment was erroneous as to the place of imprisonment, but that in such case the court hearing the case should sentence such person to the proper place of confinement, that, the judgments of the criminal court having been set aside, the pleas of guilty are still pending, and on habeas corpus the court should sentence the petitioner to the proper term in the reformatory school.

Petition for habeas corpus by Samuel Cohen, alias George Harris. Writ granted.

F. E. Luckett, for petitioner. Edward C. Crow, Atty. Gen., for the State.

GANTT, J.

The petitioner seeks by writ of habeas corpus to be discharged from the state penitentiary. The writ was granted, and the warden in due time made his return. The following facts appear: The petitioner was indicted in the criminal court of Buchanan county at the March term, 1898, for an assault to commit a robbery, and in two other indictments for robbery in the first degree. He was duly arraigned, and pleaded guilty to each indictment. He was sentenced on each indictment, — on the first to two years' imprisonment in the penitentiary; on the second, to five years, beginning at the expiration of the first sentence; and, on the third, to five years, beginning at the expiration of the second sentence. He was in due time committed to the penitentiary upon these several sentences, and is now in the custody of the warden. In his petition he represents to the court that on December 5, 1900, he filed in the criminal court of Buchanan county his motion to set aside, vacate, and for naught hold said several sentences on the ground that at the time he committed the several crimes for which he was sentenced by said criminal court he was under the age of 16 years; that said court upon a hearing set aside said judgments; wherefore he asks to...