Ex parte Jilz

• Decision Date: 31 October 1876
• Citation: 64 Mo. 205
• Parties: EX PARTE W. W. JILZ.
• Court: Missouri Supreme Court

64 Mo. 205

EX PARTE W. W. JILZ.

Supreme Court of Missouri.

October Term, 1876.

Petition for Habeas Corpus.

Chas. P. Johnson & H. B. Wilson, for Respondent.

I. The sentence of Jilz by the Court of Criminal Correction was valid, because: 1st. It was in conformity with the general law of the State prescribing the punishment for criminal abortion. (Wagn. Stat., 450, § 34.) 2nd. The 32nd section of the Act of 1869 (Session Laws of 1869, p. 199), affixing a different and milder penalty for the same offense, when committed in St. Louis County, is unconstitutional and void. (Am. Law Times, N. S. Vol. 3, No. 9, 135; Dierkes vs. Janesville, 28 Wis. 465; Kelly vs. State, 6 Ohio S. 269; Wicker vs. Potter, 18 Id. 85; Bourland vs. Hildreth, 26 Cal. 162; Brooks vs. Hyde, 37 Id. 366; McAunich vs. Miss. & Mo. R. R. Co, 20 Iowa, 338; Rice vs. State, 3 Ka. 141; State vs. Parkinson, 5 Mo. 15.) And such a law is not the “Law of the Land.” (Vanzant vs. Waddel, 2 Yerger, 270; Banks vs. Cooper, Id. 600; Wagn. Stat. 1087, § 8.)

II. The discharge of the prisoner upon habeas corpus by a judge of the circuit court was not res adjudicata and final. And the court of criminal correction had power to re-commit Jilz, notwithstanding such discharge.

Under this statute, (Wagn. Stat., 693, § 55) if a prisoner “shall have been discharged from a commitment on a criminal charge' he may afterwards be committed for the same offense, by the legal order of the court wherein he shall be bound by a recognizance or in which he shall be indicted or convicted for the same offense.”

That this statute was intended to cover just such a case as the one at bar is clear; and the authorities construing similar statutes fully recognize the power of the court having jurisdiction of the case to re-commit in such cases.

But the circuit court of St. Louis County had no jurisdiction of the case upon which Jilz was convicted. And it is a monstrous doctrine, that a court having no jurisdiction of the case, either by appeal or otherwise, may thus interfere, and prevent the sentence from being carried out.

In Yeats vs. The People, (6 John. 335)--cited by relator--the doctrine that a court of criminal jurisdiction has the power, in such cases, to re-commit for a criminal offense was fully recognized.

And in Yates vs. Lansing, (9 John. 395) it was held that “where a judge, in vacation, on habeas corpus, discharged a person committed by the chancellor on a conviction for a contempt and he was again re-committed for the same course, such re-commitment was legal.” And the court in this opinion, add among many other things in point, that the contrary view would in effect enable a court to “exercise the power of pardoning convicts.” It is clear that if the doctrine insisted upon by relator is a sound one, then any judge of a county court in the State may discharge a person convicted of murder, and he could never be legally re-arrested or re-committed. (Hurd Hab. Corp., 557, et seq.; John vs. Yeats, 4 John. 318; Yates vs. Tanson, 5 John. 282; Yates vs. The People, supra; Yates vs. Lansing, supra.)

III. The only remedy of relator is by writ of error or appeal. ( Ex parte Toney, 11 Mo. 662; Ex parte Rathburn, 17 Id. 541; Davis vs. Lucky, 1 Watts. 66; Comm. vs. Hambright, 4 Serg. & Rawle, 149.)

IV. Inasmuch as the St. Louis Court of Appeals has exclusive appellate jurisdiction of the offense for which relator was convicted, we submit that the Supreme Court has no jurisdiction to discharge in this case. To hold that this court have jurisdiction will tend to bring about an unnecessary conflict between the two courts.

It is admitted that relator has appealed his case to that court where it is now pending; and that he did not apply for a supersedeas as he might have done.

Suppose the Court of Appeals should affirm the sentence, will this court assume to render such affirmance nugatory, by discharging the prisoner? This court has no jurisdiction of the case, and, if it does discharge, its action discharging the relator will be of no more binding force than that of the circuit court.C. C. Simmons, with R. S. McDonald, for Petitioner.

The re-commitment of the petitioner on the same sentence, and for the same cause, after his discharge by Judge Lindley, was wholly illegal and inoperative. That judge was invested by law with the discretion and full power and authority to determine and adjudge whether prisoner should be remanded or set at liberty, and his decision and judgment, whether erroneous or correct, were irreversible. Even this court had no power to interfere on an appeal or writ of error. (Howe vs. The State, 9 Mo. 682.) The doctrine of res adjudicata applies to this case in all its force. The Court of Criminal Correction after that discharge had no power or authority whatever. The decision of Judge Lindley was as effectual as if it had been rendered by this court, and the judge of the Court of Criminal Correction has the same right to disregard and subvert the order of this court as he has that of Judge Lindley.

The position here taken is in strict accordance with long established and incontrovertible authority. (See Yates vs. People, 6 Johns. 337, in which the decision of the Supreme Court in the same case reported in 4 Johns. 317 was reversed; also Cable vs. Cooper, 15 Johns. 152; Spalding vs. The People, 7 Hill N. Y., 301; Martin vs. State, 12 Mo. 470; Howe vs. State, 9 Mo. 682.)

NORTON, Judge, delivered the opinion of the court.

The petitioner on the 12th of August, 1876, was tried in the St. Louis court of criminal correction and was convicted of criminal abortion, and was sentenced by said court to imprisonment in the St. Louis county jail for the term of one year and to the payment of a fine of $500. Under said sentence he was committed to the jail of said county, and there remained until the 22d day of August, 1876, when he applied to James J. Lindley, a judge of the circuit court of St. Louis county for a writ of habeas corpus, which was by said judge issued, and on a hearing of the same, the said Jilz was discharged from his said imprisonment on the same day, on the ground that the court of criminal correction had exceeded its power in sentencing him, Jilz, to confinement in the county jail of St. Louis county for one year, and that the sentence under it and the commitment were void. After said Jilz was thus discharged, he was again on the 29th day of September, 1876, re-committed to the jail of St. Louis county on a re-issue of the same commitment upon which he was originally imprisoned, and from which he had been discharged by Judge Lindley.

Petitioner Jilz now seeks to be discharged from this last imprisonment on the following grounds:

1st. Because the judgment and sentence of said court of criminal correction was void, in this, that under the law applicable to St. Louis county, said court only had jurisdiction to sentence him to an imprisonment for the period of six months in the city work house of the city of St. Louis:

2d. Because having been once discharged on habeas corpus by Judge Lindley, who had power to hear and determine the legality of his imprisonment, his re-arrest and re-imprisonment on the re-issue of the same commitment were illegal and void.

If the second reason assigned by petitioner for his discharge be well founded, it will dispense with a consideration of the first. Our attention will therefore be directed to it.

It is not denied but that Judge Lindley had the legal right to issue the writ of habeas corpus which was issued by him on the 26th day of August, 1876. If the Circuit Judge had power to issue the writ--which is conceded--such judge acquired jurisdiction over the subject matter, when the office of the writ had been partially performed, in bringing before him the prisoner with the cause of his detention and imprisonment.

In the case of Martin vs. The State, (12 Mo. 474,) where one Jackson was imprisoned by virtue of an indictment found in the criminal court of St. Louis county, and not having been brought to trial at the end of the second term after the indictment was found, he was discharged on habeas corpus by a judge of the circuit court of St. Louis county from his imprisonment, Martin, the jailor, having him in custody, was ordered by the criminal court to retain Jackson in custody to answer the indictment, but disregarded the order of the criminal court and discharged Jackson in obedience to the order of the Circuit Judge. Martin was fined for contempt in disobeying the order of the criminal court, and appealed to this court from the judgment imposing the fine. In the disposition of the case it became necessary to consider the action of the Circuit Judge in discharging Martin, and Judge Ryland, speaking for the court, observed: “The St. Louis circuit court, and the judge thereof, in vacation, had the power to grant and issue the writ. This gives to such court or judge jurisdiction over the matter; and though the statute expressly declares that ‘no person imprisoned on an indictment found in any court of competent jurisdiction, or by virtue of any process or commitment to enforce such indictment, can be discharged under the provisions of this act, but may be let to bail if the offense be bailable, and if the offense by not bailable he shall be remanded forthwith,’ yet this section does not take away the jurisdiction, but orders and directs what shall be done. A circuit judge, therefore, discharging, against this provision of the statute, may be considered as acting indiscreetly, even erroneously. Yet having jurisdiction over the subject, his order discharging must be considered a justification to the jailor in turning out the prisoner. * * * * The circuit judge having authority to issue the writ of habeas corpus (and this point the attorney for the State in his brief admits, but contends that all the subsequent acts of the judge are not only against but beyond his jurisdiction and are utterly void), his act afterwards in discharging...