Ex Parte Marmaduke

Decision Date01 October 1886
CourtMissouri Supreme Court
Parties<I>Ex parte</I> MARMADUKE.

Section 4031, Rev. St. Mo., provides that "courts of record, and any judge or justice thereof, shall have power, upon the application of any party to a suit or proceeding, civil or criminal, pending in any court of record, or public body authorized to examine witnesses, to issue a writ of habeas corpus for the purpose of bringing before such court or public body any person who may be detained in jail or prison, within the state, for any cause except a sentence for felony, to be examined as a witness in such suit or proceeding on behalf of the applicant." Held, that such section does not conflict with section 22, art. 2, Const. 1875, which provides that "in all criminal prosecutions the accused shall have the right * * * to have process to compel the attendance of witnesses in his behalf." SHERWOOD, J., dissenting.

Petition for writ of habeas corpus.

Application to be discharged from an attachment for contempt in disobeying a writ of habeas corpus ad testificandum. The facts sufficiently appear in the opinion.

NORTON, C. J.

On the twenty-seventh day of January, 1887, the St. Louis criminal court caused to be issued, and served on petitioner, the following writ:

"City of St. Louis — ss.:

"The State of Missouri, to Darwin W. Marmaduke, Warden of the Missouri State Penitentiary at Jefferson City, Missouri, Greeting: We command that you do, on Monday, January 31, 1887, at 10 o'clock A. M., without excuse or delay, bring, or cause to be brought, before the honorable St. Louis criminal court, the body of Frederick Whittrock, by whatever name or addition he is known or called, who is detained in your custody, as it is said, then and there to testify as a witness in a cause wherein the state of Missouri is plaintiff, and David S. Fotheringham is defendant, and have with you this writ return indorsed thereon, and herein fail not at your peril.

"Witness, Patrick M. Staed, clerk of said court, and the seal thereof, at the city of St. Louis, this twenty-sixth day of January, A. D. eighteen hundred

                and eighty-seven.                              PATRICK M. STAED, Clerk."
                

To this writ petitioner made the following return:

"State of Missouri, County of Cole — ss.: Now comes Darwin W. Marmaduke, warden of the Missouri state penitentiary, and for return to the within writ says that he respectfully declines to comply with said writ by producing or having the body of said Frederick Whittrock before the said criminal court as in said writ directed, for the reason that, as such warden or otherwise, he has no legal authority to remove the body of said Whittrock from the state penitentiary, wherein said Whittrock is now confined under and by virtue of a judgment and sentence of said St. Louis criminal court under a sentence for a felony.

"Done at the city of Jefferson, Missouri, this, the twenty-ninth day of January, 1887.

                            "DARWIN W. MARMADUKE, Warden Mo. State Penitentiary."
                

Upon the above being made, the said criminal court, on the thirty-first day of January, 1886, issued its writ of attachment, directed to the sheriff of Cole county, commanding him to arrest the petitioner, and have his body before said criminal court on the third day of February, 1887, to answer as for contempt in not obeying the first writ issued. The said petitioner was arrested by said sheriff by virtue of this writ, and is by him held in custody, and it is from this imprisonment that petitioner seeks to be discharged by the writ of habeas corpus issued and served on said sheriff on the first of February, 1887.

The right of defendant to be discharged is mainly dependent on the question whether section 4031, Rev. St., is or is not a valid law. The section is as follows: "Courts of record, and any judge or justice thereof, shall have power, upon the application of any party to a suit or proceeding, civil or criminal, pending in any court of record, or public body authorized to examine witnesses, to issue a writ of habeas corpus for the purpose of bringing before such court or public body any person who may be detained in jail or prison within the state for any cause, except a sentence for felony, to be examined as a witness in such suit or proceeding on behalf of the applicant." This identical statute is found in the Revised Statutes of 1835, (section 11, p. 623.) It is also found in the Revision of 1845, section 13, p. 1089;) also in the Revision of 1855, (volume 2, § 24, p. 1582;) also in the General Statutes of 1865, (section 22, p. 588;) and is carried into the Revised Statutes of 1879 as section 4031.)

It will be thus seen that the law now assailed as being unconstitutional has remained on the statute books of the state unchallenged, so far as the judicial records of the state show, for more than 50 years. By way of answer it is stated in the brief, and was so orally argued by respondent's counsel, that previous to and up to 1879 most persons who were convicted of felonies were rendered incompetent to testify as witnesses, and that the section in question forbidding persons convicted of felony from being taken from the penitentiary on a writ of habeas corpus ad testificandum into court for the purpose of being examined as witnesses was intended to apply to that class of felons who were disqualified as witnesses. This is no answer, for two reasons, — First, because, if the statute meant only this, there existed no reason whatever for its passage, inasmuch as without such statute it is not to be presumed that any court would issue a writ of habeas corpus to bring before it a person convicted of a felony to testify, who, when brought, could not testify by reason of such conviction disqualifying and rendering him incompetent as a witness in any case. It has grown into a maxim that a court will not do a useless thing, and it cannot be presumed that it was the intention of the legislature, in the passage of this statute, to forbid the courts from issuing this writ when they could not have issued it without stultifying themselves. This writ of habeas corpus ad testificandum, under any practice either in this country or England, never issued except to bring a witness competent and qualified to testify when brought, and never to bring a person who could not testify, when brought, by reason of his being disqualified as a witness. The second reason is because, while the above construction contended for gives no force to the statute, there is another construction which is reasonable, and gives force and efficacy to it. It is this: that previous to 1879, under our Criminal Code, a very great number of persons who were convicted of certain classes of felonies were not rendered, by reason of such conviction, incompetent to testify as witnesses, and it does no violence to reason to hold that it was the intention of the legislature, in enacting the section in question, while broad enough to include all who were under sentence for felony, to make it peculiarly apply to that class of felons who were not by reason of their conviction disqualified as witnesses.

Section 9 of article 13 of the constitution of 1820, and section 18 of article 1 of the constitution of 1865, provide that "in all criminal prosecutions the accused has the right * * * to have compulsory process for witnesses in his favor." In the constitution of 1875, § 22, art. 2, it is provided that "in all criminal prosecutions the accused shall have the right * * * to have process to compel the attendance of witnesses in his behalf." The learned counsel for respondent insists that the change of the words as found in the constitutions of 1820 and 1865, "to have compulsory processes for witnesses in his favor," to the words as found in the constitution of 1875, "to have process to compel the attendance of witnesses in his behalf," has worked such a change as to give some additional right to a person criminally charged, which he did not have under the constitutions of 1820 and 1865, and a change so radical as to bring said section 4031 in conflict with the constitution, and operate as a repeal of it. While there is a change in verbiage, — a change in the form of expression, — the phrase as used in the constitutions of 1820 and 1865 means the same thing as that which is used in the constitution of 1875. Compulsory process for a witness signifies and means a process that will compel the attendance of such witness, — a process that will bring a witness into court who refuses to come without it. And nothing is added to the force of a provision which gives the accused the right to have compulsory process for witnesses in his favor by changing the form of expression so as to give him the right to have process to compel the attendance of witnesses in his behalf. Both forms of expression convey to the mind precisely the same meaning. In the constitutions of 1820 and 1865 the form of expression, that the accused "has the right" to have compulsory processes for witnesses in his favor, was changed, in the constitution of 1875, so as to read shall have the right "to process to compel the attendance of witnesses in his behalf;" and it might as well be argued that the change of the words "has the right" to the words "shall have the right," and the change of the words "witnesses in his favor" to "witnesses in his behalf," altered the meaning of the section, as to argue that the meaning of the clause as contained in the constitutions of 1820 and 1865, "to have compulsory process for his witnesses," was either altered or enlarged by changing the form of expression so as to read, "to have process to compel the attendance of witnesses." It therefore follows from what has been said that, if said section 4031 is invalid under the constitution of 1875, it was also invalid under the constitutions of 1820 and 1865. And although it stood on the statute book...

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