Ex Parte Hartley., 31803.

• Decision Date: 27 April 1932
• Docket Number: No. 31803.,31803.
• Citation: 49 S.W.2d 119
• Parties: EX PARTE WALTER HARTLEY.
• Court: Missouri Supreme Court

49 S.W.2d 119

EX PARTE WALTER HARTLEY.

No. 31803.

Supreme Court of Missouri, Court en Banc.

April 27, 1932.

Habeas Corpus.

PETITIONER REMANDED.

Moore & Moore, G. Purd Hays and Robert Lamar for petitioner.

After verdict convicting a defendant on a criminal charge, to authorize his confinement there must be a mittimus, or a sentence and judgment of the trial court, and a verbal direction or a commitment from a justice court is not sufficient. Kinder v. Richeson, 264 S.W. 982; Ex parte Mills, 278 S.W. 1047; Saylor v. Com., 93 S.W. 48, 133 N.W. 315; Ex parte Cornwall, 223 Mo. 259. It standing admitted in this case that no judgment and sentence was had in this case, and that no minute was made of any judgment or sentence, petitioner will not burden the record as to nunc pro tunc entries or the right to correct anything by nunc pro tunc, as here is nothing to correct. "In the absence of statutory provision to the contrary a court has jurisdiction to pronounce judgment at a subsequent term to that in which the verdict was rendered." 16 C.J. 183, par. 251; Tuttle v. Sang, 60 Atl. 892; Smith v. State, 61 Miss. 754; State v. Watson, 95 Mo. 411. Where the delay is caused by defendant he cannot invoke such delay. People v. Blake, 19 N.W. 969. But in the absence of a permissive statute the indefinite postponment of sentence of one convicted of crime deprives the court of jurisdiction 46 Fed. 748; Grundel v. People, 33 Colo. 191, 79 Pac. 1022; and to pronounce sentence at a subsequent term. United States v. Wilson, the authorities cited under 90, p. 183, 16 C.J. cited above, from Ill., Mass., Mich. and Utah. The 95 Mo. at page 411, was followed in part in the case of State v. SchurHoff, 103 Mo. 47.

Stratton Shartel, Attorney-General, Edward G. Robison, Assistant Attorney-General, for respondents; Gordon J. Massey and Omer E. Brown of counsel.

(1) Ordinarily a defendant should be sentenced when his motion for new trial is overruled. However, the failure of the court to impose the sentence in accordance with the verdict does not deprive the court to do so at a subsequent term and this is true although no order of continuance of the cause appears on the record of said court and no order deferring sentence to some future date. The verdict of the jury is only a part of the trial. There is no final judgment until sentence is duly passed in accordance with the verdict. This the court can do at a subsequent term and it does not lose jurisdiction of the cause by reason of a failure to impose sentence at the term the verdict was rendered and motion for new trial passed on. The weight of the authorities support the above statement and the courts of Missouri are in accord with the above statement. State v. Watson, 95 Mo. 414; State v. Schierhoff, 103 Mo. 50; Flint v. Com., 76 S.E. 310; Neace v. Com., 178 S.W. 1063; Gehrmann v. Osborne, 82 Atl. 427; State v. Ray, 50 Iowa, 521; People v. Felix, 45 Cal. 164; 26 A.L.R. 398. (2) There is no question of the power of a court to defer sentence and it is recognized by the courts of Missouri and elsewhere. State v. Wurdeman, 246 S.W. 194; State v. Powell, 279 Pac. 574; Smith v. Hess, 91 Ind. 424. (3) After the verdict of guilty was returned, the defendant filed a motion for new trial. Same was overruled by the court and the State requested that a sentence be deferred until the defendant was tried on another charge and the court stated that he would so defer sentence. No record was made of the request of the State that the sentence be deferred and the court's statement that he would so defer sentence, however, the omission of the entry on the records of such court of said order would not have the effect to destroy the court's jurisdiction to act at a succeeding term. A cause undisposed of will go to the succeeding term, though no formal order of continuance is entered. Horn v. The Excelsior Springs Co., 52 Mo. App. 552; Boyer v. St. Joseph, 187 S.W. 1186; Alexander v. Haffner, 20 S.W. (2d) 898. The case law holds that there is necessity for an entry of record to carry a cause, where final judgment has not been rendered, to a subsequent term. In fact, this is the law by our statutes as our statutes specifically provide that a final judgment must be rendered in a cause and that the failure to render such a judgment at the term when the cause was tried does not divest the court of jurisdiction to render such a judgment at a succeeding term. Secs. 934, 1858, 1859, R.S. 1929. (4) When the jury returned a verdict of guilty this amounts to a conviction of the defendant. It is the verdict of the jury and not the sentence of the court that fixes the time that the defendant was convicted. Ex parte Brown, 8 Pac. 831; Ex parte Lewis, 154 Pac. 713; State v. Charles, 207 Mo. 50. Where a defendant by a verdict of the jury is found guilty he then stands convicted and even though the attempted sentence is void or no attempt is made to sentence the defendant, the petitioner is not entitled to be discharged on a writ of habeas corpus but should be ordered to be delivered to the court for the imposition of a lawful sentence nunc pro tunc, and this can be done at a subsequent term. State v. George, 207 Mo. 16; Ex parte Hughes, 167 Pac. 650; State ex rel. v. Reed, 163 N.W. 948; Bryant v. United States, 214 Fed. 51; Ex parte Lewis, 154 Pac. 713; State ex rel. Meininger v. Breuer, 304 Mo. 381; State ex rel. Billings v. Rudolph, 322 Mo. 1169.

ATWOOD, C.J.

Walter Hartley petitioned this court for discharge by the Habeas Corpus Act from the custody of Newt Mapes, Sheriff of Christian County, and Cleve Persley, jailor in charge of the common jail in Greene County and duly appointed to such position under the provisions of Section 8526, Revised Statutes 1929. Our writ was issued and service of the writ and production of petitioner's body were waived.

The sheriff and jailor filed return in their official capacity as aforesaid stating that on the 19th day of December, 1931, the said Hartley was duly charged by a complaint filed before a justice of the peace in and for Christian County, Missouri, with the crime of robbing the Bank of Highlandville situated in said county, and upon his arrest, appearance and waiver of a preliminary examination the said justice bound him over to appear on the first day of the next term of the circuit court of said county and answer said charge, fixing the amount of his bond at $25,000, and upon his failure to give bond in said sum the said justice issued a commitment to the said Mapes, certified copy of which was attached to the return, directing that said Hartley be confined in the common jail of Christian County there to remain until discharged in due course of law; that thereafter the said Hartley was duly charged by a complaint filed before said justice in connection with another person, one Alva Goddard with the crime of robbing the Bank of Sparta in said county, and upon a preliminary hearing the said Hartley was held to answer charges that might be preferred against him based on said complaint, his bond fixed at $10,000, and upon his failure to give the same he was committed as aforesaid to the common jail of said county; that said justice duly certified his action in said preliminary examination to the clerk of the Circuit Court of Christian County; that informations were filed in said circuit court duly charging him with the two distinct robberies as aforesaid; that at the regular January term, 1932, of said circuit court the said Hartley was duly arraigned and pleaded not guilty, and proceeding to trial on the information charging him with robbery of the Bank of Highlandville as aforesaid the jury found him guilty as charged and assessed his punishment at twenty years in the State penitentiary, said verdict thereupon being received by the court and ordered spread upon the records of said court and said jury being discharged; that thereafter on February 5, 1932, the said Hartley filed his motion for a new trial which motion was on February 10, 1932, overruled; that thereupon the said Hartley by his counsel requested the court to pass sentence upon him in accordance with the verdict, but the prosecuting attorney and special counsel assisting the State requested that sentence be deferred until the said Hartley could be tried upon the other charge of robbery pending against him; that the court thereupon stated that the sentence would be so deferred, and no sentence was passed upon the said Hartley by the court, nor has he been sentenced, and the court adjourned to court in course without sentencing him; that after stating that he was going to defer sentence as aforesaid the court made a minute entry in the cause as follows: "Bonds set at...