Ex Parte Dusenberg

• Decision Date: 08 July 1930
• Docket Number: No. 30146.,30146.
• Parties: EX PARTE GEORGE DUSENBERG, Petitioner, v. LESLIE RUDOLPH, Warden of State Penitentiary.
• Court: Missouri Supreme Court

30 S.W.2d 94

EX PARTE GEORGE DUSENBERG, Petitioner, v. LESLIE RUDOLPH, Warden of State Penitentiary.

No. 30146.

Supreme Court of Missouri. Court en Banc.

July 8, 1930.

Habeas Corpus.

WRIT DISMISSED AND PETITIONER REMANDED.

Watson & Allison for petitioner.

(1) The circuit court had jurisdiction, upon a writ of error coram nobis, to cancel, set aside and recall the judgment and sentence against the petitioner. State v. Wallace, 209 Mo. 364; Latshaw v. McNees, 50 Mo. 381; Ex parte Gray, 77 Mo. 381; Dugan v. Scott, 37 Mo. App. 663; Hadley v. Bornero, 103 Mo. App. 549; State v. Calhoun (Kan.), 18 L.R.A. 838; Hirsch v. Weisberger, 44 Mo. App. 506; 6 R.C.L. 105; Hopper v. Britt, 203 N.Y. 144, 37 L.R.A. (N.S.) 825. (2) The offense to which petitioner entered his plea of guilty having been committed in the County of Crawford and not in the County of Phelps, as now stands admitted of record in this case, the Circuit Court of Phelps County had acquired no jurisdiction whatever over the person of the defendant, nor the corpus of the crime; and the defendant could not submit his person to the jurisdiction of the court having no jurisdiction of the offense with which he was charged. This could not be waived. Sec. 22, Art. 2, Constitution of Missouri; Sec. 28, Art. 2, Constitution of Missouri; Sec. 3722, R.S. 1919; State v. Anderson, 191 Mo. 134; State v. Mispagel, 207 Mo. 557; Ex parte Slater, 72 Mo. 102.

Stratton Shartel, Attorney-General, for respondent; L. Cunningham of counsel.

(1) The petitioner should be remanded. After sentence was pronounced, the Circuit Court of Phelps County had no authority to set it aside or stay its execution either in whole or in part, and its order made at a later term to that effect is absolutely void. Ex parte Thornberry, 300 Mo. 661; Ex parte Cornwall, 223 Mo. 259; Ex parte United States, 242 U.S. 27. Even in civil cases a trial court has no inherent power to set aside a judgment after the termination of the term at which it was rendered. Marsala v. Marsala, 288 Mo. 501: State ex rel. v. Gill & Sons Co., 220 S.W. 978. (2) The judgment and sentence of the Circuit Court of Phelps County is conclusive as to the facts upon which it was based. It was the imperative duty of the court to determine whether or not the crime of robbery was committed at the time and in the county as charged, and whether or not the petitioner committed the crime. Each of such facts were solemnly determined by petitioner's plea of guilty, and whether these facts were true or untrue cannot be inquired into under the writ of habeas corpus. Ex parte Rush, 305 Mo. 121; Sisk v. Wilkinson, 305 Mo. 328. The record of the trial court imports absolute verity and the power to inquire into facts does not extend to such facts as are inconsistent with the record. Riddle v. Dyche, 262 U.S. 333; Ex parte Shaffer, 227 Pac. 37, 70 Mont. 609; Sisk v. Wilkinson, 305 Mo. 328. (3) Jurisdiction or lack of jurisdiction must be shown by the record. Extrinsic facts cannot be considered. Ex parte Selowsky, 208 Pac. 99, 189 Cal. 331; Ex parte Allen, 170 Pac. 921, 31 Ida. 295. An issue of fact cannot be determined under a writ of habeas corpus. Whether defendant was guilty or not is not an issue. Ex parte Boyle, 128 S.C. 535; Cross v. Foote, 17 Ga. App. 802; Ex parte Taft, 225 S.W. 457; State ex rel. v. Dobson, 135 Mo. 1; Sec. 1910, R.S. 1919; Ex parte Karnstrom, 297 Mo. 384; Ex parte Adams, 227 Pac. 844. (4) The writ of error coram nobis cannot be used in a criminal case to correct an error of fact which does not appear on the face of the record. 16 C.J. 1326, par. 3118; State v. Stanley, 225 Mo. 525. A writ of error coram nobis does not authorize a trial court in a criminal case to recall its adjudication after the expiration of the term at which judgment was rendered. 16 C.J. 1326, par. 3118; State v. Stanley, 225 Mo. 525. A writ of error coram nobis cannot be used to correct an issue of fact which has been adjudicated, even though wrongly determined. 16 C.J. 1327, par. 3118; State v. Stanley, 225 Mo. 525; 16 C.J. p. 1326, par. 3117; State v. Williams, 147 Mo. 14.

FRANK, J.

Original proceedings in habeas corpus to procure the release of petitioner from the state penitentiary where he is now imprisoned. The issue and service of our writ and the production of the body of the petitioner were formally waived. It appears from the pleadings that on June 18, 1929, at a special term of the Circuit Court of Phelps County, petitioner entered a plea of guilty to an information filed in said court, charging him with the crime of robbery in said county, and was by said court sentenced to imprisonment in the penitentiary for a term of thirty-five years, where he is now confined under said sentence.

It further appears from the pleadings that at the next regular September term, 1929, of said court, petitioner filed an application for a writ of error coram nobis to set aside the judgment and sentence under which he was imprisoned. On the hearing of this application, the prosecuting attorney admitted that the alleged robbery was not committed in Phelps County. The trial court so found, and for that reason set aside the judgment and sentence theretofore entered on petitioner's plea of guilty.

The law is well settled that a circuit court has jurisdiction on writ of error coram nobis, or a motion in the nature of such a writ, to set aside a final judgment at a term subsequent to its rendition, for errors of fact which affect the validity Error and regularity of the proceedings which resulted in the Coram rendition of the judgment, and which were not in issue Nobis. and adjudicated at the time the judgment was rendered. For example "a judgment rendered against an insane person without the intervention of a guardian; where a defendant dies after service of process, and before judgment; where a married woman (before the enactment of the Married Woman's Act) was sued without her husband being joined and judgment rendered against her; judgment against an infant without a guardian ad litem, etc."

It is also well settled that error coram nobis does not lie to correct an error of fact which was in issue and adjudicated at the time the judgment was rendered. "Only such errors can be assigned as are consistent with the record before the court, and the court will not look into the cause of action on which the judgment was rendered, or consider any fact which might have been presented to the court on the trial of the cause, and still less any facts which were put in issue and adjudicated upon the trial." [Simms v. Thompson, 291 Mo. 493, 515, 236 S.W. 876; Jeude v. Simms, 258 Mo. 26, 40, 166 S.W. 1048; State v. Stanley, 225 Mo. 525, 531, 125 S.W. 475.]

Petitioner however, insists that if the alleged robbery was not, in fact, committed in Phelps County, the circuit court of that county had no jurisdiction of said alleged offense and for that reason its judgment against him was properly set aside.

There would be merit in petitioner's claim if he had been in a position to raise the question of jurisdiction. The trouble with his contention is that the place where the robbery was committed was an issue of fact which the trial court had to determine for itself, and having once determined it, that determination is as much res judicata as the decision of any other issue in the case. [Hadley v. Bernero, 103 Mo. App. 549, 554-5, 78 S.W. 64; Baker v. Smith's Estate, 18 S.W. (2d) 147, 151; In re Lydia Sisk, 265 S.W. 536, 538, 305 Mo. 328.] The information charged petitioner with the commission of a robbery in Phelps County. The place where the crime was committed was an element of the offense and a vital issue in the case. If petitioner had not entered a plea of guilty to the charge, it would have been necessary for the State to prove, not only that he committed the robbery, but that he committed it in Phelps County. His plea of guilty took the place of evidence and was an admission of record of the truth of the charge that he committed the robbery in Phelps County. It has been said that "a plea of guilty, accepted and entered by the court, is a conviction of the highest order, the effect of which is to authorize the imposition of the sentence prescribed by law on a verdict of guilty of the crime sufficiently charged in the indictment or information." [8 R.C.L. 116, sec. 85.] It is well said in the brief of the learned Attorney-General "that petitioner could not enter a plea of guilty and after the term of court had expired, deny that any crime had in fact been committed or deny that he committed it, and offer evidence in support of such denials. The question of the commission of the crime, the time and place of its commission and the identity of the person committing it, are on a parity."

The judgment and sentence pronounced on petitioner's plea of guilty at the June (1929) term became final and conclusive with the ending of that term. If this final judgment could be lawfully set aside on motion filed at a subsequent term for alleged error of fact as to the venue of the crime, it could be set aside for alleged error of fact as to any other issue in the case. If such were the rule, there would be no...