Ex Parte Foister

• Decision Date: 14 May 1907
• Citation: 102 S.W. 542,203 Mo. 687
• Parties: Ex parte FOISTER.
• Court: Missouri Supreme Court

102 S.W. 542

203 Mo. 687

Ex parte FOISTER.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

CRIMINAL LAW — SENTENCE — SUSPENSION — POWER AFTER APPEAL.

Rev. St. 1899, § 2817 [Ann. St. 1906, p. 1623], provides that when any person under the age of 25 shall be convicted of any felony, with certain exceptions, and sentenced to the penitentiary, the court if satisfied that such person, if permitted to go at large, would not again violate the law, may parole him before he has been delivered to the warden of the penitentiary. Section 2827 [Ann. St. 1906, p. 1625] provides that no parole shall be granted while an appeal is pending. Section 2718 [Ann. St. 1906, p. 1596] provides that, when an appeal is taken, if the Supreme Court affirm the judgment, it shall direct the sentence to be executed. Section 2705 [Ann. St. 1906, p. 1592] provides that where on appeal the punishment assessed is imprisonment in the penitentiary and the judgment is affirmed, the Supreme Court shall direct the sentence to be executed and order the marshal to arrest the convict and deliver him to the proper officer of the penitentiary. Section 2706 [Ann. St. 1906, p. 1592] provides that, where the Supreme Court shall make an order under section 2705, the clerk shall deliver a copy to the marshal, who shall arrest the convict, and deliver him to the proper officer of the penitentiary. Held, that where, upon conviction, an appeal was taken to the Supreme Court, it then became the duty of that court, upon affirmance, to execute the judgment, and an attempted parole of the defendant by the circuit court after affirmance and before he was confined in the penitentiary was not within its power.

In the matter of the application of Ike Foister for a writ of habeas corpus. Petitioner remanded to the custody of the warden of the state penitentiary.

This is an application for a writ of habeas corpus; the petitioner, Ike Foister, being unlawfully restrained of his liberty, so he alleges, by the warden of the state penitentiary, who holds petitioner, as a prisoner, in said penitentiary. The return admits the official position of the warden, and also admits that he holds the petitioner and deprives him of his liberty, and pleads a certain conviction, judgment, and sentence of the circuit court of Stone county, rendered at the October term, 1905, whereby the petitioner was convicted of the crime of felonious assault, and sentenced to two years in the penitentiary. The return also alleges that the petitioner was granted an appeal from said conviction, judgment, and sentence to the Supreme Court of Missouri, and that said Supreme Court affirmed the judgment of said circuit court on the 5th day of March, 1907; that, in pursuance of said judgment of affirmance, the clerk of said Supreme Court issued a commitment, directed to the marshal of said court, commanding the marshal to take the body of the petitioner and deliver him to the warden of the penitentiary; and that said marshal took the body of the petitioner into his custody and delivered the petitioner to the warden of the penitentiary. The return further alleges that the action of the circuit court of Stone county on the 11th day of March, 1907, in making an order for the parole of the petitioner, was illegal and void, and in violation of section 2827 of the Revised Statutes of Missouri of 1899 [Ann. St. 1906, p. 1625]. A demurrer challenging the sufficiency of the return and again praying for the discharge of the prisoner, notwithstanding the allegations embraced in the return, was treated and considered as being filed.

G. W. Thornberry and Delaney & Delaney, for petitioner. The Attorney General and N. T. Gentry, for respondent.

FOX, P. J. (after stating the facts).

The record before us in this proceeding discloses but one question. That is in respect to the power of the circuit court of Stone county to parole the petitioner under the provisions of article 14 of chapter 16 of the Revised Statutes of 1899 [Ann. St. 1906, p. 1622], relating to the parole of prisoners. The defendant in this cause was convicted in the circuit court of Stone county at the October term, 1905, of the crime of felonious assault, and sentenced to two years in the penitentiary. From this judgment of sentence he was granted an appeal to the Supreme Court of Missouri, and this court on the 5th day of March, 1907, affirmed the judgment of the circuit court, and, in conformity to the provisions of section 2705 [Ann. St. 1906, p. 1592], directed the sentence pronounced in the circuit court to be executed, and in carrying out such provisions the Supreme Court, under the express provisions of the section above cited, ordered the marshal of said court to arrest the petitioner and deliver him to the proper officer of the penitentiary. The circuit court of Stone county, prior to the execution of the process directed to the marshal of this court, undertook by an entry of record to parole the prisoner under the provisions of the article heretofore designated.

The crucial question confronting us is this: Did the circuit court possess such power? The power of the circuit court to parole is embraced in the provisions of section 2817, Revised Statutes of 1899 [Ann. St. 1906, p. 1623], which provides: "When any person under the age of twenty-five years shall be convicted of any felony, except murder, rape, arson or robbery, and imprisonment in the penitentiary shall be assessed by the court or jury as a punishment therefore, and sentence shall have been pronounced, the court before whom the conviction was had, if satisfied that such person, if permitted to go at large would not again violate the law, may in his discretion, by order of record, parole such person and permit him to go and remain at large until such parole shall be terminated as hereinafter provided; provided, that the court shall have no power...