Ex Parte Dipley

• Decision Date: 07 March 1911
• Citation: 233 Mo. 235,135 S.W. 56
• Parties: EX PARTE DIPLEY.
• Court: Missouri Supreme Court

135 S.W. 56

233 Mo. 235

EX PARTE DIPLEY.

Supreme Court of Missouri, Division No. 2.

March 7, 1911.

CRIMINAL LAW (§ 1084) — APPEAL — STAY — PROCEEDINGS—"CAPITAL CASES."

Under Rev. St. 1909, § 5294, providing that no appeal in a criminal case shall stay any case, unless the Supreme Court or the court rendering the judgment shall for probable cause make an order staying the proceedings, except in "capital cases," where the granting of an appeal shall operate as a stay, an appeal stays only those cases in which the sentence is that of capital punishment, and not all cases where the indictment charged a capital offense.

Application by Walter Dipley for a writ of habeas corpus to compel Henry Andrae, Warden of the Penitentiary, to discharge him from imprisonment. Denied.

Geo. R. Clay, for petitioner. E. W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

KENNISH, P. J.

This is an application for a writ of habeas corpus by Walter Dipley, petitioner. It appears from the facts stated in the petition in the case that the petitioner on the ___ day of January, 1911, in the circuit court of Webster county, at the January term, 1911, thereof, upon an information theretofore filed in said court, was tried and convicted of the crime of murder in the first degree, and his punishment assessed at imprisonment in the penitentiary for the period of his natural life. Judgment was pronounced and sentence passed in accordance with the verdict, and the petitioner, in due form, appealed to this court. It further appears that the sheriff of said county procured from the clerk of said court a duly certified copy of the said sentence and judgment, and by virtue of the authority thereof transported the petitioner to the penitentiary of this state and delivered him into the care and custody of Henry Andrae, the warden thereof, who now has the petitioner in his custody, confined within the walls of the penitentiary, and that he is now so confined and restrained of his liberty. The prayer of the petition is that a writ of habeas corpus be issued, and that the petitioner may be discharged from such unlawful imprisonment.

It does not appear that this court, or a judge thereof, or the said circuit court of Webster county, in which the judgment was rendered, or the judge of said court, made an order expressly directing that such appeal should operate as a stay of the proceedings on the judgment so pronounced against the petitioner.

Duly certified copies of the information, sentence, and judgment, and order granting the appeal in said cause, are attached to the petition.

The petitioner waived the production of his body in court, and the warden waived the issuance of a writ, and filed his return to the petition herein.

It is alleged in the return of the warden that the said Walter Dipley is now in his custody and imprisoned in the penitentiary of the state of Missouri, at the city of Jefferson, in the county of Cole, under a judgment and sentence and order of the circuit court of Webster county, Mo., copies whereof are attached to the application for the writ in this case. The return admits the truth of the facts stated in the application of the petitioner, and prays the judgment of the court thereon. Suggestions by the Attorney General, accompanying the return of the warden, are a file, but no brief has been filed on behalf of the petitioner. We gather from the pleadings and suggestions that the petitioner bases his right to be discharged from his present confinement in the penitentiary on the ground that, having been convicted of murder in the first degree, the order granting an appeal from the judgment, as a matter of law, operated as a stay of execution, and that therefore he was entitled to remain in the county jail pending his appeal.

Section 5294 of the Revised Statutes of 1909, covering this subject, is as follows: "No such appeal or writ shall stay or delay the execution of such judgment or sentence, except in capital cases, unless the Supreme Court, or a judge thereof, or the court in which the judgment was rendered, or the judge of such court, on inspection of the record, shall be of opinion that there is probable cause for such an appeal or writ of error, or so much doubt as to render it expedient to take the judgment of the Supreme Court thereon, and shall make an order expressly directing that such appeal or writ of error shall operate as a stay of proceedings on the...