Ex Parte McAnally

• Decision Date: 28 November 1906
• Citation: 199 Mo. 512,97 S.W. 921
• Parties: Ex parte McANALLY.
• Court: Missouri Supreme Court

97 S.W. 921

199 Mo. 512

Ex parte McANALLY.

Supreme Court of Missouri.

November 28, 1906.

1. HABEAS CORPUS — JURISDICTION—SUPREME COURT.

Where after one convicted of a misdemeanor appealed to the Court of Appeals and executed a bond he was committed to the custody of the sheriff, the Supreme Court would entertain a petition in habeas corpus, it appearing that neither the Circuit Court nor Court of Appeals was in session and no judge of either within reach of petitioner and that, aside from the Supreme Court, he could not obtain a hearing without first suffering a long imprisonment.

2. BAIL — APPEAL—BOND—CUSTODY PENDING APPEAL.

Rev. St. 1899, § 2698 provides that an appeal from a judgment in a criminal case shall stay execution only when an order is made directing a stay. Section 2702 declares that any court or judge authorized to grant an appeal, may on habeas corpus, admit to bail. Held, that where one was convicted of misdemeanor and granted an appeal to the Court of Appeals, though no stay of execution was ordered and though he was not brought before the court on habeas corpus, he having, with the approval of the circuit court, executed a bond to answer with his body the result of the appeal, the circuit court had no authority to order his commitment pending the appeal.

In Banc. Habeas corpus on the petition of S. M. McAnally to obtain petitioner's release from the custody of the sheriff of Bollinger county. Petitioner discharged.

Hensley & Revelle and Wm. M. Morgan, for petitioner. The Attorney General, N. T. Gentry, and J. Monroe Robins, for respondent.

VALLIANT, J.

A writ of habeas corpus, issued out of this court on the petition of S. M. McAnally, directed to the sheriff of Bollinger county commanding him to have the body of the petitioner, whom it was alleged the sheriff unlawfully held in prison, before the judges of this court to be dealt with as might be determined. It appears from the sheriff's return that the petitioner was convicted of a misdemeanor in the circuit court of Bollinger county and sentenced to a fine of $300, and imprisonment for the term of four months in the county jail; that in due time he prayed an appeal from that judgment to the St. Louis Court of Appeals which was granted, and, under the direction and with the approval of the circuit court, he executed a bond with security conditioned in effect that he would prosecute his appeal and abide the judgment of the appellate court, and render himself in execution as might be required. The appeal was duly prosecuted and is now pending in the St. Louis Court of Appeals. But notwithstanding the appeal and the bond a commitment issued out of the circuit court, as in execution of the judgment, commanding the sheriff to take into custody and to imprison the petitioner in the county jail, and in obedience to that writ the sheriff holds the prisoner.

1. The first point which the Attorney General presents in his brief is that since the prisoner's case is pending in the Court of Appeals that was the proper court to which his petition should have been addressed, therefore, this court has no jurisdiction to hear his complaint. This court is not, in this proceeding, going to hear the cause that is pending in the Court of Appeals. The only question we have is: Can this man be lawfully held in jail serving out his sentence while the Court of Appeals is deliberating on his case? So far as the question of jurisdiction is involved, this court or any judge thereof has jurisdiction to issue a writ of habeas corpus in any case where any court of this state or judge thereof has jurisdiction to issue it. We do not understand the proposition to be that we have no jurisdiction of this case in a strict sense of that term, but rather that this court will not ordinarily use its lawful power to take a case out of the hands of the Court of Appeals when that court has already taken hold of it, and has lawful authority to dispose of it, and in that proposition the learned law officer is correct. Ordinarily, under the circumstances above stated, we would send the petitioner to the Court of Appeals, or to the court under whose writ he is held. But in this case it was made to appear to us that neither the Court of Appeals nor the circuit court was in session, that...