Ex Parte Messina v. Maltbie, 19575.
| Decision Date | 29 May 1939 |
| Docket Number | No. 19575.,19575. |
| Citation | 128 S.W.2d 1082 |
| Parties | EX PARTE RALPH MESSINA, PETITIONER, v. L.H. MALTBIE, RESPONDENT. |
| Court | Missouri Court of Appeals |
John S. (Jack) Cannon, Richard S. Musser and Charles Benanti for petitioner.
Harold Zelinkoff and Russell T. Boyle, Assistant Prosecuting Attorney for respondent.
No briefs.
On May 11, 1939, the applicant filed in this court for a writ of habeas corpus wherein it was alleged he was being unlawfully restrained of his liberty by William P. Boyle, Director of Police in and for Kansas City, Jackson County, Missouri, and other officers named. And also naming L.H. Maltbie, Agent for the State of Kansas.
Temporary writ was granted and petitioner brought before this court and by agreement of all parties hearing was set for Thursday, May 25, 1939. Pending date of hearing, petitioner was released on bail duly furnished in the sum of $3000.
All parties respondent filed return to writ on May 19, 1939. The return of the agent of the State of Kansas is as follows:
"Comes now L.R. Maltbie for his return to said Writ states that on the 8th day of May, 1939, an executive warrant was issued by the Honorable Lloyd C. Stark, Governor of the State of Missouri, for the arrest of the said Ralph Messina at the request of the State of Kansas on the 9th day of May, 1939, the said Ralph Messina voluntarily surrendered himself into the custody of the Kansas City, Missouri Police Department and that thereupon a writ of habeas corpus issued by the Honorable Brown Harris, a judge of the Circuit Court of Jackson County, Missouri, was served on the Kansas City, Missouri Police Department; that thereupon the said police department produced the body of the said Ralph Messina before the court to be dealt with according to law and made the following return to said writ of habeas corpus, to-wit:"
The return of other respondents conform to the above return.
Applicant joined issue on two grounds: First, applicant alleged that at the time of the alleged offense in the State of Kansas he was not in the State of Kansas and therefore cannot be a fugitive from Justice; Second, applicant pleads res adjudicata and alleges that over eight years ago, to-wit on May 12, 1931, he was arrested under a fugitive warrant issued in the extradition proceedings by the Governor of the State of Missouri, wherein the exact charge as is charged herein was made and where the same issues as are now presented was therein in issue. Applicant further alleges that at said time when so charged he made application to Division No. 3 of the Circuit Court of Jackson County, Missouri, and was granted a preliminary writ of habeas corpus and that said cause was set for hearing on May 27, 1931, and that issues the same as now presented were joined and that the cause was then duly taken up by the said court, and that by the judgment, orders and decrees of said court, he was fully discharged and the matter of the charge of him being a fugitive from justice as to the charge as now made was fully adjudicated and the judgment and decrees there entered and made are res adjudicata and a bar to the present proceeding.
In the hearing had by us, evidence on part of applicant and respondent was submitted. There was evidence on part of applicant to the effect that at the time of the commission of the offense in Kansas, to-wit, arson, he was in the State of Missouri. The evidence was to the effect that he was a pall bearer at the funeral of a deceased friend and was present at the wake at the alleged time. There was, however, strong and cogent testimony to the effect that applicant was at the said time in the State of Kansas and at the very scene of the explosion and fire.
A witness who saw the flash and heard the explosion saw applicant flee from the scene and attempted to apprehend applicant and another as they fled, but that applicant and companion made their escape. Identification of applicant was made by this witness. His presence was further shown by an overcoat that was left at the scene. The applicant's last name was inscribed on the coat and the coat was traced by trade marks thereon and purchaser of same was shown to be applicant.
If passing alone upon the testimony offered in this case, we would certainly be impelled to the conclusion that the State of Kansas had met every burden and it would be our duty if deciding on the testimony, as indicated above and without consideration of the other defense made by applicant's reply, to decide this matter adverse to the applicant and permit him to be returned to Kansas for trial.
As to the applicant's plea of res adjudicata, a very grave question arises. It is the policy of our law that when an issue is once adjudicated that the matters of the issue involved become fixed and binding on all concerned as parties to the matter being litigated. Principles of public policy demand that it be thus, for otherwise human affairs would be in such an unsettled state as to defeat organized society. However, the frailties of human activity has its application even to the matters of the recorded judgment of courts of general jurisdiction, and wise safeguards against mistakes in matters of recorded judgments are provided. It is the duty of the court to keep notes of its proceedings and if after a judgment has been duly recorded there arises a question as to whether or not the record recites the true procedure and finding, any party feeling aggrieved at the error, if so, may file a motion in the court wherein the judgment was rendered asking for a correction. If upon the hearing of such motion there be such existing notes of the proceeding as show error in the recorded record, then and in that event the said court may correct the judgment so as to conform to the facts by what is termed a nunc pro tunc entry. As to the making of such an entry, it appears that neither estoppel nor limitation of time...
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