Ex Parte Cornwall

• Decision Date: 23 November 1909
• Parties: Ex parte CORNWALL.
• Court: Missouri Supreme Court

122 S.W. 666

223 Mo. 259

Ex parte CORNWALL.

Supreme Court of Missouri, Division No. 2.

November 23, 1909.

1. PARDON (§ 7) — JUDGMENT OF CONVICTION — GRANTING PAROLE.

A judgment of conviction sentencing defendant to pay the costs and to be imprisoned in jail a certain time, and then providing that the court grants defendant a stay of execution on condition that she remove from the place she now occupies, and does not return thereto, and does not again violate the law, does not grant a parole; it reciting none of the essential requirements under the law regulating the granting thereof.

2. CRIMINAL LAW (§ 993) — REVISING JUDGMENT.

Even though a judgment of conviction, imposing as a penalty payment of costs and imprisonment for a certain time, and staying execution on condition of defendant doing certain things and not doing others, be erroneous, yet it having been partly complied with by the costs being paid, and some of the conditions being complied with, the court has no power, at least at a subsequent term, to revise it, and substitute therefor an entirely new judgment.

3. HABEAS CORPUS (§ 109) — POWER TO ENTER NEW SENTENCE IN SUCH PROCEEDINGS.

Rev. St. 1899, §§ 2720, 3615 (Ann. St. 1906, pp. 1596, 2033), providing that one shall not be discharged on habeas corpus because of the judgment under which he is confined being erroneous "as to time or place of imprisonment," but that the court, before whom the relief is sought, shall sentence him to the proper place of confinement, and for the correct length of time, give the court no power, in habeas corpus proceedings, to enter, in place of the original judgment imposing imprisonment, a new judgment imposing a fine; and, without statutory authority at least, it has no such power.

Original habeas corpus proceedings by Florence Cornwall. Relator discharged.

This is an original proceeding pending in this court. On the 25th day of August, 1909, relator presented her petition to the Honorable Henry Lamm, one of the judges of the Supreme Court of this state, in chambers at Sedalia, Pettis county, Mo., praying for the issuance of a writ of habeas corpus. The writ was issued and the prisoner brought before the judge forthwith in accordance with the commands of the writ. Subsequently it was ordered that the return to this writ be set over until the October term, 1909, of the Supreme Court of Missouri; it being agreed that the petitioner should be released on bond. The bond was presented, approved, and the prisoner released. Upon the meeting of court in banc at the October term, 1909, this proceeding was assigned to Division No. 2. The return was duly made by the sheriff and jailer of Pettis county, Mo. Upon the return as made, the relator moved the court to discharge her from imprisonment for the reason that no legal cause is shown for her imprisonment and restraint by the return made by the respondents to the writ of habeas corpus issued herein. We deem it unnecessary to burden the statement and opinion with a reproduction of the petition or the return of the sheriff and jailer of Pettis county to the writ issued upon the petition. There is no dispute about the facts, and a statement of them will fully disclose the controverted questions involved in the record before us.

At the November term, 1908, of the criminal court of Pettis county, Mo., the petitioner was indicted by the grand jury for keeping a bawdyhouse. She employed counsel, Messrs. C. C. Kelly and E. C. White. It was first agreed between her counsel and the prosecuting attorney that petitioner should plead guilty to the charge and a fine should be imposed upon her for $250, then a stay of execution should be granted her on condition that she should leave her home and should not return thereto, and that she should not again violate the law. The question was then raised that this fine would be a lien on her real property, and she refused to plead guilty under the arrangement. It was then agreed between her counsel and the prosecuting attorney that she should enter a plea of guilty to the indictment and a jail sentence should be imposed upon her of 90 days and a stay of execution granted on condition that she should leave her home, and not again violate the law, which was concurred in by the court. With this understanding, she entered a plea of guilty on the 1st day of December, 1908, in the criminal court of Pettis county, Mo.; the same being the November term, 1908, of said court. The judge of said court, in pursuance of said understanding had between her counsel and the prosecuting attorney, imposed a jail sentence of 90 days upon her, but granted her a stay of execution on condition that she remove from the place she then occupied and did not return thereto, and that she did not again violate the law. The petitioner then paid all the costs of the suit, abandoned her then home, and did not return thereto until after the writ herein was granted. At the January and April terms of the criminal court of Pettis county, 1909, no steps were taken by the court in the cause. At the June term, 1909, of said court, to wit, on the 10th day of July, 1909, the court, on the suggestion of the prosecuting attorney, made an entry of record in which it was recited that the petitioner had violated the terms of her parole by keeping a disorderly house. The court thereupon, as the record recites, revoked her parole, and ordered an execution issued. On the 20th day of August, 1909, petitioner was arrested and committed to the Pettis county jail. On the same day she sued out a writ of habeas corpus before the Honorable Louis Hoffman, judge of the criminal court of Pettis county, returnable August 23, 1909. Upon the hearing on said writ, said court set aside the jail sentence imposed upon the petitioner upon the 1st day of December, 1908, and assessed against her a fine of $200 in lieu thereof, and ordered her in the custody of the jailer of said county until said fine was paid. She refused to pay said fine, and was thereupon committed to jail. On the same day she again presented her petition to the Honorable Louis Hoffman, judge of the circuit and criminal court of Pettis county, Mo., for her release from jail. Her petition was denied, whereupon she applied by a similar writ to the Honorable Henry Lamm, judge of this court, where her petition was granted and writ issued and made returnable on the 1st day of the October term, 1909, of this court.

Among the exhibits filed with the petition we find Exhibit A, which discloses the rendition of the original judgment against the petitioner by the circuit court of Pettis county. This exhibit is as follows: "Be it remembered that on the 1st day of December, 1908, the same being the 21st day of the regular term of the Pettis county circuit court, A. D. 1908, the following among other proceedings of the same day were had, made and entered of record, to wit: Keeping a Bawdyhouse. State of Missouri, Plaintiff, vs. Florence Cornwall, Defendant. No. 10,744. Now at this day comes the prosecuting attorney, on the part of the state, and also comes the defendant in person, attended by her counsel, and the said defendant withdraws her plea of not guilty heretofore entered herein, and enters a plea of guilty to the crime of keeping a bawdyhouse charged in the indictment herein; and the court fixes her punishment for said offense at imprisonment in the county jail for ninety (90) days. It is therefore sentenced, ordered, and adjudged by the court that said defendant be remanded to the custody of the sheriff of this county, and by him be imprisoned in the county jail for a period of ninety (90) days, and that the state have and recover of said defendant the costs of this prosecution, and that execution issue accordingly. And now the court grants the defendant a stay of execution upon condition that she remove from the place she now occupies, and does not return thereto, and that she does not again violate the law."

Exhibit B discloses the order revoking what the prosecuting attorney and the court construed to be a parole to the petitioner. This exhibit is as follows: "Be it remembered that on the 10th day of July, 1909, the same being the 15th day of the regular June term of the Pettis county circuit court, A. D. 1909, the following, among other proceedings of the same day were had, made and entered of record, to wit: State of Missouri, Plaintiff, v. Florence Cornwall, Defendant. No. 10,744. Keeping a Bawdyhouse. Now at this day comes the prosecuting attorney, on the part of the state, and informs the court that the defendant, Florence Cornwall, is violating the terms of her parole by keeping a disorderly house whereupon the court revokes her parole, and orders execution issued."

Exhibit C discloses the action of the circuit court of Pettis county at the special August term, 1909, in the matter of the application of Florence Cornwall for a writ of habeas corpus. This exhibit is as follows: "Be it remembered that on the 23d day of August, 1909, the same being the 1st day of the special August term of the Pettis county circuit court, A. D. 1909, the following, among other proceedings of the same day were had, made and entered of record, to wit: In the Matter of Application of Florence Cornwall for Writ of Habeas Corpus. 9,833. Now this day this cause coming on to be heard and the court having seen the pleadings and heard the evidence doth find that the defendant on December 1st, 1908, entered a plea of guilty to this court upon a proper indictment preferred by the grand jurors of Pettis county, against this defendant for keeping a bawdyhouse, and by agreement of the prosecuting attorney of Pettis county, and attorneys for the defendant in lieu of a fine, this court then and there sentenced defendant to imprisonment in the county jail for ninety days. It is ordered that said judgment so far as it relates to the punishment at jail imprisonment, be set aside, and that the defendant pay a fine...