Ex parte Flournoy

• Decision Date: 18 September 1925
• Docket Number: 26618
• Citation: 275 S.W. 923,310 Mo. 355
• Parties: Ex Parte LEE FLOURNOY, Petitioner
• Court: Missouri Supreme Court

275 S.W. 923

310 Mo. 355

Ex Parte LEE FLOURNOY, Petitioner

No. 26618

Supreme Court of Missouri

September 18, 1925

Discharge Denied.

O. J Page for petitioner.

Walker J. White, Ragland and Atwood, JJ., concur; Blair, C. J concurs in separate opinion; Graves, J., dissents in separate opinion to be filed; Woodson, J., not sitting.

OPINION

WALKER

Lee Flournoy, the petitioner invokes relief under the Habeas Corpus Act, and alleges that he is unlawfully restrained of his liberty by the sheriff and jailer of Greene County, Missouri, under and by virtue of a warrant of extradition issued, after a hearing, by the Governor of this State, upon an application of the Governor of Nebraska for the return of said Lee Flournoy to said State to answer a charge of bank robbery.

I. There is no return filed herein by the officer having the custody of the petitioner, other than a declaration endorsed on the back of the writ issued to the sheriff by this court to the effect that: "I hereby return the within writ by producing the prisoner, Lee Flournoy." Signed, "Alfred Owens, Sheriff Greene County, Missouri." This constitutes no return within the meaning of the statute. However, as stated by the sheriff, the petitioner was produced and being represented by counsel proceeded, upon the allegations made in his petition, to formally present his reasons why he should be released. The fact that no return had been filed was disregarded by counsel for the petitioner throughout the hearing and no mention of same was made in the formal suggestions filed in support of the application for release. This court, having heard the case wholly upon the allegations of the petition, which course was acquiesced in by all the parties hereto, the absence of the return is not an issue in the case. Any other ruling upon this condition of the record would necessitate a dismissal of the proceeding. The return and not the petition is the principal pleading. [Ex parte Thornberry, 300 Mo. l. c. 674.] The latter has performed its function when the writ is issued. It is to the return, therefore, that a traverse or denial must be made to the material facts set forth in the return, and upon its being filed the case is at issue. Without the filing of these pleadings no issue is presented, and only a dismissal is authorized, unless, as at bar, a failure to comply with the required procedure is ignored and the case is heard on the allegations of the petition alone. We have not ruled upon a like state of facts here, but in other jurisdictions it has been held, in the absence of a return, that the court has no jurisdiction to hear and determine an application for relief in a habeas corpus proceeding. [Lowndes Co. v. Leigh, 69 Miss. 754; People ex rel. v. Kings Co. Jail, 160 A.D. 480, 145 N.W. 1064; Clayborn v. Tompkins, 141 Ind. 19; Matter of Haller, 12 Hun, (N. Y.) 131.]

In still other jurisdictions it has been held that in the absence of a return the court may proceed to determine the cause upon a verified and undenied petition and if thus proceeding the want of the return will not impair the judgment rendered. [Ex parte Wood, 58 Okla. 278; Bearden v. Donaldson, 141 Ga. 529; McConoloque's Case, 107 Mass. 154.]

II. One of the allegations of the petition, although not stressed in the hearing, is that the application for a requisition does not state the crime with which the petitioner is charged in that State. The formal application of the Governor of Nebraska is not made a part of the record and no proof was offered to sustain this allegation. It does appear, however, over the signature of the Governor of Missouri, attested by the Secretary of State, that the warrant for the arrest of the petitioner and the order for his delivery to the agent of the State of Nebraska was based upon a demand made by the Governor of Nebraska for the petitioner's return to that State upon the ground that he was "a fugitive from justice and was wanted to answer a charge of bank robbery." Absent any contravening fact we are authorized in assuming the correctness of the warrant issued by the Governor of this State and hence there is no merit in this contention.

III. It is further contended that the warrant issued by the Governor of this State was invalid, in that the hearing upon the extradition application was had before the Governor's private secretary and another, and not before the Governor. There was no proof offered to sustain this allegation. The certified copy of the Governor's warrant for the arrest and extradition of the petitioner is signed by the Governor and attested by the Secretary of State. Thus panoplied it imports verity. Besides we have held that a hearing before the private secretary will not affect the validity of the Governor's warrant. [Ex parte Pelinski, 213 S.W. 809.]

IV. In addition it was contended at the hearing, but was not made an issue by the petitioner, that the affidavit accompanying the application for a requisition charges no crime under the statutes of the State of Nebraska. It will suffice to say, preliminary to a discussion of this contention, that in a proceeding of this character, a criminal charge sufficient under the laws of Nebraska will authorize the approval of the granting of this requisition, although such charge may be insufficient under the laws of this State. [Ex parte Pelinski, 213 S.W. 809; Ex parte Reggel, 114 U.S. 642; Drew v. Thaw, 235 U.S. 432.]

The Nebraska statute under which the affidavit against the petitioner was filed is in these words:

"That whoever enters any building occupied as a bank, depository or trust company and by violence or by putting in fear any person or persons in charge of or connected with said bank, depository or trust company with intent to take, steal or carry away any of the money, goods, chattels or other property belonging to or in the care, custody or control of said bank, depository or trust company shall be deemed guilty of a felony and on conviction thereof shall be confined in the state penitentiary not less than ten nor more than twenty-five years." [Sec. 9622, R. S. Neb. 1922.]

The affidavit, omitting formal matters, is as follows:

"The complaint and information of Felix T. Melonis of Douglas County aforesaid, made in the name of the State of Nebraska, before one of the judges of the municipal court, within and for the city of Omaha, in said county and state, this 24th day of August a. d. 1925, who being duly sworn, on his oath says, that Lee Flournoy on or about the 7th day of March a. d. 1925, in the county aforesaid and within the corporate limits of the city of Omaha aforesaid, then and there being, then and there having entered a certain bank, to-wit, Security State Bank, South Omaha, Nebraska, a corporation, which said bank is located at 4827 South 24th Street, in the City of Omaha, County of Douglas and State of Nebraska, then and there intending by violence to steal, take and carry away from said Security State Bank, South Omaha, Nebraska, a corporation, certain money belonging to said bank, did then and there unlawfully, feloniously, forcibly and by violence put in fear William A. Rathsack, Frank L. Vlach, Laura A. Pokorski, Felix T. Melonis, Millie Peterson and John S. Kramoschlis, all then and there being in said bank, and the said Lee Flournoy then and there being in said Security State Bank, South Omaha, Nebraska, a corporation, aforesaid, unlawfully, feloniously, forcibly, by violence and by putting in fear the said William A. Rathsack, Frank L. Vlach, Laura A. Pokorski, Felix T. Melonis, Millie Peterson and John S. Kramoschlis, did steal, take and carry away $ 7500 in good and lawful money of the United States of America of the value of $ 7500, the personal property of the said Security State Bank, South Omaha, Nebraska, a corporation, with the intent of him the said Lee Flournoy, in so doing, unlawfully, feloniously, forcibly and with violence to steal, take and carry said property away, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Nebraska.

"Felix T. Melonis.

"Subscribed in my presence and sworn to before me this 24th day of August a. d. 1925.

"Geo. Holmes,

"Judge of the Municipal Court of the City of Omaha."

With the law of Nebraska and the ruling of its court thereon before us, presumptions in regard thereto, which might obtain without these aids, need not be entertained.

It is evident from the phraseology of Section 9622, that it is inartificially drawn. Some "prentice hand," not an unusual factor in legislative assemblies, had to do with its making. This aside, however, as merely expressive of the character of the section as indicated by its terms. It is enough for us in measuring the sufficiency of the affidavit drawn thereunder to quote the language employed by the Supreme Court of Nebraska in construing Section 9622 in an information filed in one of the courts of that state, entitled Smith v. State, 109 Neb. 579, charging the defendant with robbery. While the information is not set out in the opinion enough appears to enable it to be determined in what its insufficiency is alleged to consist. The court thus discusses the contention of counsel for the defendant:

"Error is assigned because the information was drawn in the disjunctive, and because the law under which the prosecution proceeded is what counsel for the defense terms 'confusion's masterpiece,' and of no effect. The act is certainly a bunglesome piece of English." (Here follows a copy of the section as heretofore set forth).

"Ill drawn as the statute is, its meaning may thus far be deduced with certainty, i. e., he who enters a bank and does violence, with intent to steal, take or carry away any money or property...