Ex parte Dixon
| Citation | 52 S.W.2d 181,330 Mo. 652 |
| Decision Date | 08 June 1932 |
| Docket Number | 32267 |
| Parties | Ex Parte Charles Dixon, Carroll Krepps, George Eccardt and George Brown |
| Court | Missouri Supreme Court |
Prisoner remanded.
Scott Miller for petitioners.
Petitioners Charles Dixon, Carroll Krepps, George Eccardt and George Brown seek release by the Habeas Corpus Act from the custody of Leslie Rudolph, Warden of the Missouri State Penitentiary.
Issuance and service of the writ and production of the bodies of petitioners were waived, and the warden filed return stating that he holds each of the petitioners under and by virtue of two commitments issued by the Circuit Court of Grundy County Missouri, on November 30, 1929, at the November, 1929, term thereof, and by a commitment issued by the Circuit Court of Livingston County, Missouri, on April 8, 1930, certified copies of which commitments were attached to and made a part of his return.
It further appears from said return that on November 30, 1929 each of said petitioners pleaded guilty in the Circuit Court of Grundy County to an information charging grand larceny, to-wit, stealing an automobile, and to an information charging grand larceny, to-wit, stealing United States money, and pursuant thereto each was sentenced to be confined in the State penitentiary for a period of four years from November 30, 1929. It also appears from said return that on April 8, 1930, petitioners each pleaded guilty in the Circuit Court of Livingston County to a charge of robbery with firearms, based on an indictment, and on such plea each was sentenced to be confined in the penitentiary of the State of Missouri for a period of fifteen years "said punishment to commence and begin at the termination of the sentence and judgment of imprisonment in the State penitentiary imposed by the Circuit Court of Grundy County, Missouri, against said defendant at the regular November term, 1929, thereof of four years for grand larceny of money and four years for grand larceny of an automobile, said judgment and sentence being dated November 30, 1929."
The verified petition herein, which in the circumstances above mentioned is to be taken as and for the writ, states that the charge of robbery with firearms, to which petitioners pleaded guilty in the Circuit Court of Livingston County on April 8, 1930, was based upon the same act which the charge of grand larceny of money rested to which petitioners pleaded guilty in the Circuit Court of Grundy County on November 30, 1929. [1] The ground upon which petitioners seek release is that under the Fifth Amendment of the Constitution of the United States no person shall "be subject for the same offence to be twice put in jeopardy of life or limb," and petitioners having served the time for which they were sentenced in Grundy County they cannot now be held under the commitment from Livingston County. This constitutional provision, however is without application to the trial of criminal prosecution by a state because, as said in Gaines v. Washington, 277 U.S. 81, 85: [See, also, U.S. Code Ann., Const. Part 2, p. 492.]
A similar provision appears in Section 23 of Article II of the Constitution of Missouri, as follows, "nor shall any person, after being once acquitted by a jury, be again, for the same offense, put in jeopardy of life or liberty;" and the common-law rule that no person shall for the same offense be twice put in jeopardy is in force in this State. [State v. Linton, 283 Mo. 1, 22 S.W. 847.] While "the guaranty that no person shall for the same offense be twice put in jeopardy has always in this country been regarded as one of the most sacred rights of the individual," (State v. Toombs, 34 S.W.2d 61, 66, 326 Mo. 981), yet it is a personal privilege and may be waived. [3] [U.S. Code Ann. Const., Part 2, p. 492; Levin v. United States, 5 Fed (2d) 598, certiorari denied 269 U.S. 562.] The doctrine is thus stated in 8 Ruling Case Law, pages 117, 118:
"In some jurisdictions the statutes permit former jeopardy to be proved under a plea of not guilty, but the general rule is that this defense must be presented at the proper time by a special plea in bar, and if such plea is not duly interposed the defense is waived and cannot be urged at any stage of the case, either during the taking of testimony or on a motion for a new trial, or on a motion in arrest of...
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State v. Murphy
... ... State v. Snyder, 182 Mo. 462, 503, 82 S.W. 12, 24; or of ... former jeopardy, Section 3664, Revised Statutes 1929; Ex ... parte Dixon, 330 Mo. 652, 655, 52 S.W.2d 181, 182 ... We can ... see no sufficient reason why the law should discriminate ... against ... ...
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State ex rel. Stewart v. Blair
...robbery case, as shown by the report of the cause when it was here on appeal, State v. Cory, supra, 123 S.W.2d 541. And contrary to the Dixon case, supra, the general rule is that habeas corpus is a collateral attack, or of that nature. [10] A motion for new trial in a criminal case in this......
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Hernreich v. Quinn
...444. (3) Nor does habeas corpus take the place of or act as an appeal or writ of error against the original judgment. Ex parte Dixon, 52 S.W.2d 181, 330 Mo. 652. (4) the absence of an answer filed by the petitioner to the return of the sheriff, which is the first pleading, such return is ta......
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State v. Stroemple
...rel. v. Dobson, 135 Mo. 1, 36 S.W. 238; Sec. 1626, R.S. 1939; Ex parte Ruthben, 17 Mo. 541; Ex parte Schneider, 29 Mo.App. 256; Ex parte Dixon, 52 S.W.2d 181. (2) Mode of procedure erroneously changed. Secs. 3892, 3953, R.S. 1939; (3) Pleas of former jeopardy were erroneously withheld from ......