Ex parte Perse
| Decision Date | 31 August 1926 |
| Citation | 286 S.W. 733,220 Mo.App. 406 |
| Parties | EX PARTE S. P. PERSE |
| Court | Missouri Court of Appeals |
PETITIONER REMANDED TO CUSTODY.
D. H KEMP for petitioner.
(1) The warrant of commitment issued by the justice in this case appears to be regular upon its face, and recites that the petitioner is committed to the jail on account of a sentence imposed by a justice of the peace, on a plea of guilty, to imprisonment for a period of six months. This warrant of commitment is wholly void because there is no judgment upon which to base the same. Ex parte Fowler, 275 S.W. 529, 532; Ex parte O'Brien, 127 Mo. 477. And where this is the case a prisoner may be discharged under habeas corpus. In re Wooldridge, 30 Mo.App. 612. Ex parte Smith Petitioner, v. Richardson, Sheriff, 208 Mo.App. 456; Ex parte Creasy, 243 Mo. 679, 707. The complete entry, as shown by the Judge's docket, is found on pages 2 and 6 of the bill of exceptions, and all taken together does not amount to a judgment of any kind or character. A judgment of a justice of the peace, to be valid, must conform substantially to the requirements of section 3779, Revised Statutes 1919. (2) The entry of the justice, made in August, if it were sufficient and would piece out the judge's record so as to make a judgment, cannot be used for that purpose in this case. Section 3785, R. S. 1919, The sole question for this court is--On --- day of Aug., 1925, did S. R. Reynolds as justice of peace have any legal authority to issue the commitment under which respondent seeks to justify the detention of petitioner? We say No. State v. Griffie, 118 Mo 188, 199; Norton v. Porter, 63 Mo. 345; City of Stanberry v. Procter, 48 Mo.App. 56; Smith v. Chapman, 75 Mo. 217; State v. Hobbs, 279 S.W. 200. (3) The commitment herein is void for the further reason that it is not shown that the justice of the peace had jurisdiction over the crime charged. It nowhere shows by the judge's docket or by the complaint upon which the justice proceeded, what township he was attempting to exercise jurisdiction in, or in what township the crime was alleged to have been committed. Section 3759, R. S. 1919; State v. Sexton, 141 Mo.App. 694. The justice's record should show that the justice had jurisdiction, and the appearance of the defendant does not waive that defect. Barnes v. Plessner, 121 Mo.App. 677. A justice of the peace has no authority or right to issue a warrant or proceed in a misdemeanor without an information being first filed by the prosecuting attorney. Section 3763, R. S. 1919. This record shows an information filed by the prosecuting attorney, but it nowhere shows by his record or otherwise that it was filed before the confession. In fact, the judge's record shows that the whole proceedings were based upon the complaint of the sheriff. We, therefore, respectfully submit that the prisoner should be discharged.
John T. Burgess, Prosecuting Attorney, for respondent.
(1) The only entry made by the justice in his record after the defendant plead guilty on the 26th day of May, 1925, was the entry made as to issuing the commitment on the 24th day of August, 1925. (2) The defendant instead of being immediately committed to jail, on his confession or plea of guilty to the charge, was given, at his own request, a stay of execution for ninety days, and granting that, the justice had no legal authority to stay the execution, yet, that alone would not entitle the defendant to his discharge. Ex parte Thomberry, 254 S.W. 1087; L. C. 1089, 1090. (3) The justice had jurisdiction of the person and crime charged. The information on its face shows that it was filed before S. R. REYNOLDS, a justice of the peace of Flat Creek Township in Barry county, Mo., and that the offense charged was alleged to have been committed in said Flat Creek Township. There being nothing in the record showing that the information had not been filed prior to the confession of the defendant, the presumption would be that the justice had the information before accepting the defendant's plea. (4) It is held in State v. Griffie, 118 Mo. 188, 199, the "a justice cannot change his record after same is written up, but the fact that he did not date or sign same would not invalidate the judgment."
Original proceedings for habeas corpus.
COX, P. J.--
The petitioner, S. P. Perse, is confined in jail in Barry county under a commitment issued by S. R. Reynolds, justice of the peace of Flat Creek Township in said county. It is contended by the petitioner that the entries in the docket of the justice of the peace do not show a valid judgment and since the judgment is invalid the commitment is void and his imprisonment therefore unlawful.
The language used in the justice docket in this case is as follows: After the expiration of ninety days the justice issued a commitment that is conceded to be in proper form which recited that the justice had rendered a judgment on May 26, 1925, against defendant for a fine of $ 200 which had been paid and that on request of defendant a stay of execution for ninety days had been granted and that the time of the stay of execution had expired and then commanded the sheriff to take and confine him in jail for six months. The justice also entered in his docket at that time a recital of the fact that the time of the stay of execution had expired and that a commitment had been issued.
The petitioner contends that the record of the justice does not constitute a judgment, therefore will not sustain the commitment which to be valid must be based on a valid judgment. That there must be a valid judgment to support a commitment to jail will be conceded. It will be noticed that the record of the justice does not not show that an information was filed before the justice. The proof at the hearing, however, shows that an information was filed by the prosecuting attorney on May 26th, the same day that the entry of defendant's confession was noted. The information bears the file mark of the justice showing that it was filed on May 26, 1925, and this is prima-facie evidence that it was filed on that day. [Grubbs et al. v. Coombs et al., 57 Mo. 83; State v. Pieski, 248 Mo. 715, 719, 154 S.W. 747.]
It is also true that the fact that an information was filed and the date at which it was filed may be shown by parol and the failure of the justice to make an entry in his docket showing that an information was filed will not invalidate the judgment afterward rendered. [State v. Hockaday, 98 Mo. 590, 593, 12 S.W. 246; State v. Jackson, 221 Mo. 478, 120 S.W. 66; Connors v. St. Joseph, 237 Mo. 612, 619, 141 S.W. 638; State v. White, 263 S.W. 192.]
It appearing that the information was filed on the same day that the plea was entered it will be presumed, in the absence of evidence to the contrary, that the plea was entered after the information was filed and that the plea was made to the charge in the information and not to the charge in the affidavit upon which the defendant was arrested.
It appears in the record that an affidavit by a private individual was filed before the justice and a warrant issued and defendant arrested before the information was filed. The record does not show the facts required under the statute, section 3761, Revised Statutes 1919, to authorize the issuance of a warrant and the arrest of defendant prior to the filing of an information by the prosecuting attorney. The statute does not require that the justice make an entry in his docket showing that he found the facts required by the statute to be found to be true before he issued the warrant and hence he was not required to make such an entry in his docket and his failure to do so did not invalidate the warrant. [State ex rel. v. Stobie, 194 Mo. 14, 44, 92 S.W. 191.]
The charge being a misdemeanor the jurisdiction of the justice was limited to the township in which the offense was committed and the fact that the alleged offense was committed...
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