Ex parte Donaldson

• Decision Date: 31 March 1869
• Citation: 44 Mo. 149
• Parties: Ex parte WILLIAM DONALDSON.
• Court: Missouri Supreme Court

44 Mo. 149

Ex parte WILLIAM DONALDSON.

Supreme Court of Missouri.

March Term, 1869.

Petition for habeas corpus.

L. M. Shreve, for petitioner.

C. P. Johnson, circuit attorney, and H. B. Johnson, attorney-general, for the State.

Under the provision of the statute, sections 28, 29, chapter 213, the prisoner would not be entitled to his discharge until the expiration of the March term, 1869, and such term has not yet expired. (12 Mo. 592; 14 Mo. 386; 21 Mo. 464; Ex parte Walton, 2 Wheat. 501.) The circuit attorney, in criminal proceedings, may, at any time before trial, of his own accord, and at any time before judgment, with the assent of the court, enter a nolle prosequi. (1 Whart., 5th ed., 513; Commonwealth v. Wheeler, 2 Mass. 172; Commonwealth v. Briggs, 7 Pick. 179; State v. Lopez, 19 Mo. 254.)

WAGNER, Judge, delivered the opinion of the court.

The petitioner prays for a writ of habeas corpus, and states that he is imprisoned and restrained of his liberty in the county jail of St. Louis county by Emile Thomas, the jailer thereof; that he is so detained under and by virtue of an affidavit made by Charles P. Johnson, the circuit attorney, on the 9th day of April, 1869, charging him with the crime of murder, upon which a warrant was issued from the St. Louis Court of Criminal Correction, and upon said warrant he was imprisoned, and is still held in custody. He further states that he was indicted at the July term, 1868, of the St. Louis Criminal Court, by the grand jury of St. Louis county, for the same offense for which he is now again proceeded against; and that on the 14th day of July, 1868, he pleaded not guilty to the said indictment; and that the case was set down for trial on the 30th day of July, and that he announced himself ready for trial, but the State continued the case for the alleged absence of two witnesses, Ray and Glover, and for the same cause continued the case at the September, November, and January terms of said court. At each continuance the petitioner represents that he was ready for trial, and so announced himself, and objected to the cause being continued by the State; that the delay to try the case did not happen on the application of the prisoner, nor was it occasioned by want of time to try the same. The petitioner also states that when the case was continued at the January term, it being on the 20th day of said month, he did, during said term, on the 10th day of February, file a motion in the Criminal Court for his discharge, grounded on the fact that he had not been brought to trial within three terms of said court, exclusive of the term at which he was indicted; that on the 27th day of February said motion for his discharge was set and called for hearing, at which time he was present, and asked to have said motion heard and the prayer thereof granted, but the court continued the motion over to the next term, for the reason that the circuit attorney was not there; and afterward, at the March term of said court, the motion was argued and submitted to the court, but, before any judgment was rendered thereon, the attorney for the State entered a nolle prosequi. The prisoner, therefore, claims that by law he is entitled to the benefit of the writ prayed for, and ought to be discharged.

The issuing of the writ is opposed in this court by the circuit attorney, prosecuting in behalf of the State.

The usual practice where a writ of habeas corpus is asked for is to grant it, and hear the arguments on the merits at the return. But the reasons on which the application for discharge is based are agreed upon by the parties, and they have argued the question here in the first instance. Besides, the statute expressly provides that any court or magistrate empowered to grant writs of habeas corpus shall grant such writ without delay, unless it appears from the petition itself, or the documents annexed, that the party can neither be discharged, admitted to bail, nor in any other manner relieved. (Gen. Stat. 1865, p. 623, § 5.)

The right of the prisoner to be discharged under this writ is based solely on the ground that, without any fault or hindrance on his part, he was not brought to trial on the indictment found against him by the grand jury at the July term, 1868, before the end of the third term after that in which the indictment was preferred. And the position is now distinctly taken that under the statute, being then entitled to his discharge from the offense of murder, he can not again be lawfully deprived of his liberty for the same offense.

Under the general practice regulating criminal practice throughout the State, provision is made for discharging persons indicted for an offense, where they are committed to prison, at the end of the second term, where the delay has not happened on the application of the prisoner. But it seems that in this case the prisoner was admitted to bail, and it must, therefore, if relief is granted, be brought within the provisions of the 28th section of chapter 213 of General Statutes. That section ...