Ex Parte McLaughlin
| Decision Date | 31 March 1908 |
| Citation | 109 S.W. 626,210 Mo. 657 |
| Parties | Ex Parte GEORGE McLAUGHLIN |
| Court | Missouri Supreme Court |
Petitioner remanded.
H. M Walsh for petitioner.
This petitioner rests his application for a writ of habeas corpus upon the following contentions, to-wit: (1) The provision for the issuance of informations as a concurrent method of procedure with indictments is repugnant to the Constitution of the United States in the fifth amendment, which provides that "no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury," no power having ever been delegated to this or any other State to alter or amend this provision of the United States Constitution. The right to the grand jury investigation is one of those rights which are in the nature of progress from the dark ages, and any attempt to qualify or abrogate that right is a surrender without authority of one of our national bulwarks. Ex parte Wilson 114 U.S. 417; Parkinson v. United States, 121 U.S 281. (2) The right to a preliminary hearing is a common law right, and is not in any way a limitation on the right of the circuit attorney, but a mere matter of procedure according to a person accused of a crime an opportunity to learn the nature of the offense charged, the time and place of its alleged commission, and is in the nature of a bill of particulars, a right accorded in almost every other State. By a preliminary hearing the accused is in a position to learn the time when the offense is committed, and get other information not accorded by the pleadings, and which in these days of zealous prosecutors cannot be secured from the State. It is our belief that this act requiring preliminary hearings is only a weak and wobbly step in the direction of the preserving to the people that great right of grand jury inquisition which partakes of the government by the people. The placing of the grand jury power in the hands of a single partisan individual is too great a power to go without a check, and was foreseen by the framers of our national Constitution.
Herbert S. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and Arthur N. Sager for respondent.
(1) "Where the accused waives a preliminary examination before a magistrate, and, on account of the waiver, no examination is had, he is estopped to claim any advantage, because of the absence of such examination." Benjamin v. State, 25 Fla. 675; 14 American Digest, par. 460. "After the accused has been indicted, and pleaded not guilty, it is too late to urge his right to a preliminary examination before a committing magistrate." State v. Caulfield, 23 La. Ann. 148. "A preliminary examination, or an order to show cause, and a hearing thereon, is not a necessary preliminary to a proceeding or information." United States v. Ronzone, 14 Blatch. 69; Ex parte Bedard, 106 Mo. 616. Since the Constitution places informations on an equal footing with indictments, since a prosecuting attorney might hold a defendant until a grand jury met, denying him the right to a preliminary examination, since the Constitution is self-enforcing, and addresses itself to the courts, the right to a preliminary examination is not jurisdictional. An information does not put the accused on trial for a different offense from that covered by the preliminary examination, but under the statute a count for receiving stolen property may be added by the prosecuting attorney without a preliminary examination on that. Com. v. Freelove, 150 Mass. 66. In State v. Ransenberger, 42 Mo.App. 466, it was held that the Legislature has no power to abridge process of prosecuting attorneys. When this cause was transferred to the Supreme Court, the judgment was affirmed. State v. Ransenberger, 106 Mo. 135; Bollin v. Nebraska, 176 U.S. 83; State v. Watson, 30 Kan. 281; State v. Webster, 39 N.H. 96; State v. McO'Blenis, 24 Mo. 403. (2) The amendment to the Constitution provides that prosecutions for felonies and misdemeanors shall be by indictment or information, which shall be concurrent remedies. The grand jury have the right to return an indictment against any one who in its opinion has committed a felony, and the circuit attorney possesses the same right. No one would argue for a moment that the grand jury could not return an indictment until the defendant had been accorded a preliminary examination, hence, the argument that the circuit attorney may be thus restricted, is fallacious.
Habeas Corpus.
-- 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...
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