Ex parte Knight

• Decision Date: 29 May 1925
• Docket Number: 26120
• Parties: EX PARTE MARY H. KNIGHT, Petitioner, v. JOHN L. MILES and M. M. LANE
• Court: Missouri Supreme Court

272 S.W. 922

308 Mo. 538

EX PARTE MARY H. KNIGHT, Petitioner, v. JOHN L. MILES and M. M. LANE

No. 26120

Supreme Court of Missouri

May 29, 1925

Writ awarded.

W. C Irwin, George Reinhart and Frank Rader for petitioner.

David E. Blair, J. Graves, C. J., White, Ragland and Atwood, JJ concur; Walker, J., concurs in separate opinion. Woodson, J. absent.

OPINION

BLAIR

The petition in this case was filed January 23 1925. After rejection by the court of a former opinion, the case has been assigned to the writer.

Petitioner is the mother of Harry Knight. To avoid confusion, the latter will be referred to as "defendant." Our writ issued January 30, 1925. Production of the body of defendant was waived. Both respondents have filed their returns. Respondent Lane filed an amended and supplemental return on February 9, 1925. A denial (denominated as "answer") to such amended return has been filed. No denials to the original return of Respondent Lane or to the return of Respondent Miles were filed.

In a habeas corpus case the issues are framed upon the return and denial, without reference to the petition for the writ. [In re Breck, 252 Mo. l. c. 319; Ex parte Bryan, 76 Mo. l. c. 254; Ex parte Durbin, 102 Mo. l. c. 104; In re Tartar, 278 Mo. l. c. 365.]

The original return of Respondent Lane, who is now Sheriff of Johnson County, alleged that defendant is detained by virtue of a warrant and commitment issued by a justice of the peace of Madison Township, Johnson County, charging him with a felony, and that he is confined in the jail at Kansas City, Missouri, for safekeeping, under an order of Honorable Ewing Cockrell, Judge of the Circuit Court of Johnson County, for the reason that the jail of Johnson County is not in a safe condition to hold said defendant.

Said respondent attached to his return a copy of said warrant, issued December 27, 1924, to the sheriff or any constable of Johnson County, together with the return of the sheriff thereon. In substance, said warrant recited that complaint had been made before the issuing justice charging defendant with forgery of a note and uttering thereof. It commanded such officer to arrest defendant and safely keep him so as to have him before the issuing justice to answer said complaint. The return reads, "I hereby certify that I executed the within writ in the County of Cole on the 30th day of Dec. 1924, by arresting the within named Harry Knight." Said return was signed by Ed Duncan as sheriff.

Respondent Lane also attached to his return a copy of the commitment issued by the justice of the peace, which recited the arrest of defendant for forgery and obtaining money under false pretenses and the defendant was brought before said justice for examination and that defendant failed to enter into recognizance for his appearance at the preliminary examination. It was therefore ordered that the defendant be committed to the county jail for further examination. The jailer was commanded to receive him into his custody in said jail, there to remain until discharged according to law.

The amended or supplemental return of said respondent was evidently filed to meet an allegation made in the petition for the writ, and argued here orally, that the prosecution of defendant was barred because more than three years had elapsed, after the alleged commission of the offense charged against him, and no indictment or information had been filed against him. Said amended return alleged that defendant had been a fugitive from justice and not an inhabitant of or usual resident within this State for more than a year and a half since the commission of the alleged offense. Said amended return set forth the information upon which defendant's absence from the State was based, and to said return two letters were attached.

The return of the Sheriff of Jackson County, Respondent Miles, merely set out a copy of the application of Ed Duncan, Sheriff of Johnson County, for an order of the judge of the circuit court directing him to remove defendant to the Jackson County jail, and the approval and direction of the circuit judge to that effect, and that said respondent was holding defendant in his custody by virtue thereof.

On February 16, 1925, an instrument, called an "Answer to the Supplemental Writ made by M. N. Lane, Sheriff," was filed by Harry Knight and not by petitioner. We make no point on these considerations, however, and will treat said instrument as the denial of petitioner to the return of Respondent Lane. Said "answers" denied that defendant was at any time a non-resident of Missouri and alleged that he was a permanent resident of this State and that his absence therefrom, if any, was only temporary.

It was then alleged that defendant was previously arrested on said charge on August 3, 1923, and gave bond and was permitted to go at large thereunder, in custody of his bondsmen; that no written complaint of any kind or character has ever been filed charging defendant with the commission of an offense against the laws of Missouri.

I. Prosecution for the felony of forgery must be commenced by the finding of an indictment or the filing of an information within three years after the commission of such offense. [Sec. 3737, R. S. 1919; State v. McNeal, 262 S.W. 1025, l. c. 1027.] Where the indictment is not found nor the information filed within such three-year period, the State must allege and prove the exceptions which prevent the running of the statute. [Secs. 3739 and 3740, R. S. 1919; State v. Snyder, 182 Mo. l. c. 498; State v. Meyers, 68 Mo. l. c. 268.]

To the original return of Respondent Lane was attached a copy of the warrant which recited that the complaint charged the commission of the offense as of January 28, 1921. That being true and none of the exceptions preventing the running of the Statute of Limitations, defendant could not have been prosecuted upon said charge upon the date of his arrest and subsequent commitment to jail. It does not appear either that the complaint did or did not plead any of the exceptions specified in said Sections 3739 and 3740. Such complaint is not before us. But even if it did not allege such exceptions, no reasons appear why such complaint cannot yet be amended so as to make such allegations. If defendant is bound over to the circuit court, the prosecuting attorney may allege in his information the facts relied upon to avoid the Statute of Limitations. In his amended return, Respondent Lane states that he is informed that the Prosecuting Attorney of Johnson County proposes to file an amended complaint alleging the facts which are relied upon to avoid the Statute of Limitations. In oral argument here said prosecuting attorney made the same statement. We are justified in assuming that such course will be pursued.

In the justice of the peace court in the first instance and finally in the circuit court, are found the appropriate forums to determine such issue of fact. Even assuming that this court might try such issues in an appropriate proceeding on proper pleadings and proof, a matter which we do not decide, we think the announced purpose of the prosecuting attorney to amend his complaint in the justice court, with the tender here of letters tending to show that defendant lived in Oklahoma for a year or more and in Kansas for several months prior to June, 1923, tend to establish the good faith of the claim that defendant was outside of the State of Missouri for such a length of time and that the Statute of Limitations has not barred the prosecution. Such issue should be tried in the justice of the peace and circuit courts and not here. No evidence has been presented...