Ex Parte Mclaughlin

• Decision Date: 31 March 1908
• Parties: Ex parte McLAUGHLIN.
• Court: Missouri Supreme Court

109 S.W. 626

210 Mo. 657

Ex parte McLAUGHLIN.

Supreme Court of Missouri, Division No. 2.

March 31, 1908.

1. INDICTMENT AND INFORMATION — CONSTITUTIONAL PROVISIONS.

The fifth amendment to Const. U. S., providing that no person shall be held to answer for a capital or infamous crime unless on a presentment or indictment of a grand jury, is a limitation only on congressional power, and not on the power of the several states, and the amendment of Const. Mo. 1875, art. 2, § 12 (Ann. St. 1906, p. 134), adopted November 8, 1900, and providing for the prosecution of felonies by indictment or information as concurrent remedies, is not repugnant to such fifth amendment to Const. U. S.

2. HABEAS CORPUS — GROUNDS FOR RELIEF — ERRORS AND IRREGULARITIES.

The overruling of a plea in abatement, motion to quash, and demurrer to an information, setting up that the information fails to aver that defendant was given a preliminary hearing before the filing of the information is not reviewable on habeas corpus, but only on appeal or writ of error, the correctness of the rulings of another court of competent jurisdiction not being reviewable on habeas corpus unless they go to the jurisdiction.

3. CRIMINAL LAW — COURTS — JURISDICTION TO BE SHOWN BY RECORD.

The circuit court of the city of St. Louis is a court of general criminal jurisdiction, and the filing of an information and the prosecution thereof in such court is not a special or exceptional exercise of jurisdiction, in which all the preliminary steps leading up to the prosecution must be affirmatively shown on the face of the record or information.

4. SAME — PRELIMINARY EXAMINATION — WAIVER.

The according or denial of the preliminary trial of an accused provided by statute goes only to the regularity of the proceedings, and not to the jurisdiction of the circuit court, and the preliminary examination may be waived, not only in the justice's court or other examining tribunal, but at the time defendant is required to plead to the information, and defendant waives it by pleading the general issue of not guilty.

Original proceeding in habeas corpus by George McLaughlin for discharge from a prosecution. Discharge denied.

H. M. Walsh, for petitioner. N. T. Gentry, Atty. Gen., and A. N. Sager, for respondent.

GANTT, J.

This is an original proceeding in this court by the petitioner for discharge from a prosecution pending against him in the circuit court of the city of St. Louis for criminal causes, for robbery in the first degree.

On an information duly verified by the assistant circuit attorney of the city of St. Louis, the defendant was arrested, and on a preliminary examination in the court of general sessions was bound over to await a trial in the circuit court for said offense. Afterwards at the February term, 1908, of the circuit court, an information duly verified was filed in said court charging him with robbery in the first degree. On February 11, 1908, the defendant being in the custody of the sheriff was duly arraigned upon the information, and entered his plea of not guilty. Afterwards, without withdrawing such plea, he filed his plea in abatement, to which the state demurred, and the demurrer was sustained. Defendant then filed his motion to quash alleging substantially the same matters set up in the plea in abatement, to wit, that he had not been accorded a preliminary hearing prior to the filing of the information, and for the reason that the information did not on its face allege he had been accorded such preliminary examination. This motion to quash was overruled. Defendant then filed a demurrer to the information on the grounds that the information did not charge any offense, and that the court had no jurisdiction to try the case. The demurrer was overruled. At this point in the cause, the petitioner began this proceeding for habeas corpus in this court.

The grounds upon which he seeks his discharge are briefly, first, that the proceeding by information instead of by indictment is repugnant to the fifth amendment to the Constitution of the United States which provides that: "No person shall be held to answer for a capital or other infamous crime unless on a presentment or indictment of a grand jury." Second, because the information does not on its face allege the petitioner had been awarded a...