Ex parte Page

• Decision Date: 31 January 1872
• Citation: 49 Mo. 291
• Parties: EX PARTE JASPER PAGE.
• Court: Missouri Supreme Court

49 Mo. 291

EX PARTE JASPER PAGE.

Supreme Court of Missouri.

January Term, 1872.

Petition for Habeas Corpus.

Lay & Betch, for petitioner.

WAGNER, Judge, delivered the opinion of the court.

It appears from the record submitted to this court that the petitioner was indicted in the Osage Circuit Court for the crime of grand larceny, that he confessed his guilt, and that the court sentenced him to ten years' imprisonment in the penitentiary. He has already served out four years of the time for which he was sentenced, and he now asks to be discharged on the ground that his sentence was illegal.

The statute provides that persons convicted of grand larceny shall be punished as follows: “First, stealing a horse, mare, gelding, colt, filly, mule, or ass, by imprisonment in the penitentiary not exceeding seven years; second, in all other cases of grand larceny, by like imprisonment, not exceeding five years.” (Wagn. Stat. 457, § 26.) In no case, therefore, does the statute authorize, for any of the offenses which constitute grand larceny, a sentence for more than seven years' imprisonment. Hence the judgment of imprisonment for ten years was in violation of the statute and palpably illegal. It would have been reversible on writ of error or appeal, as a matter of course. Can this court furnish the required remedy in this proceeding? The general principle is that on a hearing of a writ of habeas corpus, when it appears that the prisoner is detained by virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction, no inquiry into the regularity of the proceedings which resulted in the judgment can be had. For all such errors or irregularities the law provides other remedies. (Wagn. Stat. 689, § 33; Ex parte Toney, 11 Mo. 661; In re Truman, 44 Mo. 181.) But the statute by an express enactment declares that when a prisoner is brought up on habeas corpus, if it appear that he is in custody by virtue of process from any court legally constituted, or issued by any officer in the service of judicial proceedings before him, such prisoner can be discharged only in one of the following cases: “First, where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person.” * * * Sixth, where the process is not authorized by any judgment, order or decree, nor by any provision of law. (Wagn. Stat. 690, § 35.)

It seems to me that the court in passing the sentence exceeded its jurisdiction in the matter, and that it did not act by authority of any provision of law. This application, therefore, I think comes within the meaning of the statute.

It has been suggested that if the prisoner is not discharged, we should reduce the term so as to bring it within the limit prescribed by statute. But we know of no authority empowering us to act in proceedings of this kind. The statute makes it the duty of this court to examine the record and award a new trial, reverse or affirm the judgment or decision of the lower court, or give such judgment as that court ought to have given. But that provision in express terms is confined to appeals and writs of error, and can have no application in the present case. We are not aware of any authority by which we can undertake to modify a criminal sentence.

In England the settled practice is that where the inferior court on a valid indictment transcends its power in passing sentence, by giving one which the law does not...