Ex parte Cornwall
| Decision Date | 23 November 1909 |
| Citation | 122 S.W. 666,223 Mo. 259 |
| Parties | Ex Parte FLORENCE CORNWALL |
| Court | Missouri Supreme Court |
Relator discharged.
Sangree & Bohling and J. H. Bowron for relator.
(1) The criminal court of Pettis county, under the statutes, could only impose a fine for the offense charged. The jail sentence was unauthorized. R. S. 1899, sec. 2197. Likewise, the stay of execution granted relator was unauthorized. A stay of execution may be granted for ninety days after conviction, by defendant entering into a recognizance to surrender himself in execution. R. S. 1899, sec. 2695. Or a stay of execution may be granted when an appeal is taken. R. S. 1899, secs 2698 and 2699. Or when a writ of error is sued out. R. S 1899, sec. 2700. The judgment and stay of execution, although erroneous, were complied with by relator for the ninety days and longer, and she was entitled to her discharge. An erroneous sentence, after it has been partly executed, cannot be revised by the court, and a new sentence imposed, even at the same term of court. Ex parte Lange, 18 Wall. 163; Ex parte Johnson, 46 F. 477. (2) The condition of the stay of execution could not extend beyond, or be performed after, the expiration of the term for which the relator was sentenced. Ex parte Prout, 86 P. 275; Woodward v. Murdock, 124 Ind. 444. (3) After the November term of court, 1908, had elapsed, and the January and April terms, of 1909, intervened, the criminal court of Pettis county had no authority to set aside the stay of execution and order relator committed to jail under the judgment. Danforth v. Lowe, 53 Mo. 217; Warren v. Manwaring, 173 Mo. 37; State v. Riley, 219 Mo. 667. (4) There is nothing in the return that shows that relator had violated the conditions of the stay of execution, and it should not have been set aside. (5) Relator was entitled to a hearing on the question, whether she had violated the conditions of the stay of execution. State ex rel. O'Connor v. Wolfer, 53 Minn. 135, and cases there cited. The information the prosecuting attorney furnished the court that the relator had violated the stay of execution, was of no more force and effect than if the information had been furnished by any private individual. Nor does the court find that the relator had violated the conditions of the stay, but sets the stay aside on such information, regardless whether true or false. The information the prosecuting attorney furnished the court, was that relator, "is violating the terms of her parole, by keeping a disorderly house." The court then ordered the parole set aside. She never had been paroled, she was granted a stay of execution. The words, "parole" and "stay of execution," have well defined meanings in our criminal law, and this court, when a person's liberty is involved, will not say, when a court of record which speaks by and through its records, used the words, "stay of execution," meant "parole," and when the word "parole," is used, that it meant "stay of execution." The parole law is unconstitutional, being in conflict with section 8, article 5, of the Constitution of Missouri. The Governor alone has power to grant reprieves, commutations and pardons. Constitution of Missouri, art. 5, sec. 8; Constitutional Discharge of Convicts, 73 Vt. 414; Ex parte Parker, 106 Mo. 551; State v. Sloss, 25 Mo. 291; People v. Cummings, 88 Mich. 249. (6) The relator pleaded guilty with the understanding that she was to receive ninety days' jail sentence. The court had no authority to set aside the jail sentence and impose a fine in lieu thereof. She refused to plead guilty and accept a fine, for the reason that such fine would be a lien on her real estate. State v. Stephens, 71 Mo. 535; State v. Kring, 71 Mo. 551. (7) A sentence that exceeds in its extent the punishment prescribed by law for the offense in question, is absolutely void and the prisoner is entitled to be discharged on habeas corpus. Ex parte Page, 49 Mo. 291; Ex parte Cox, 32 P. 197; Miller v. Snyder, 6 Ind. 1; People v. Litscomb, 50 N.Y. 559; State v. Norwood, 95 N.C. 578; Hanney v. State, 5 Wis. 521.
Harvey D. Dow for respondents.
The plea of guilty was voluntary, and properly received by the court. The statute under which petitioner was convicted, Sec. 2197, R. S. 1899, provides a fine not less than $ 200 nor exceeding $ 1,000. A jail sentence of 90 days is not responsive to the statute under which plea of guilty was entered, and therefore the prisoner was sentenced to punishment not allowed by law. Secs. 2197, 2649 and 2651, R. S. 1899; In re Bowman, 7 Mo.App. 569; State v. Ammons, 220 Mo. 6. The office of the writ of habeas corpus first sued out in the circuit court of Pettis county, has been so far changed into a writ of error as to require the court hearing the habeas corpus to resentence the prisoner in conformity with the law, where the prisoner has been sentenced to a punishment not allowed by law, or in excess of that allowed by law. Sec. 2720, R. S. 1899; Babb v. Brueve, 23 Mo.App. 604; Ex parte Kenney, 105 Mo. 535; Ex parte Gray, 77 Mo. 160; Ex parte Cohen, 159 Mo. 662; State v. Nunley, 185 Mo. 102. Where there is an erroneous judgment and sentence, the court will enter proper judgment and sentence. Ex parte Kenney, 105 Mo. 535; Babb v. Brueve, 23 Mo.App. 604; State v. Musiman, 112 Mo.App. 540; Carter v. Epasitine Co., 124 Mo.App. 530; State v. Biesemeyer, 136 Mo.App. 668. Where the judgment and sentence is one not allowed by law, and not prescribed in the statute for the court to make, the same may be set aside and the proper judgment entered, upon an application for discharge of prisoner by writ of habeas corpus. Sec. 2720, R. S. 1899; Babb v. Brueve, 23 Mo.App. 604; Ex parte Page, 49 Mo. 291; Coal Co. v. Lead & Zinc Co., 123 Mo.App. 249; Fisher v. Fisher, 114 Mo.App. 627; 1 Black on Judgments, sec. 307. The commitment under which the defendant was held at the time of the issuance of the original writ herein was regular and according to law. Secs. 2661 and 2684, R. S. 1899. The stay of execution shown by the record is not authorized by any statute. Such stays apply to cases specially mentioned in particular statutes, and this is not the class of cases mentioned. Secs. 2665, 2666, 2669 and 2672, R. S. 1899; State v. Hockett, 129 Mo.App. 639.
Habeas Corpus.
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 Missouri, 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, Missouri. 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 Missouri, the petitioner was indicted by the grand jury for keeping a bawdy house. 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 ninety 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 first day of December, 1908, in the criminal court of Pettis county, Missouri -- 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 ninety 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...
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