Ex Parte Perse

• Decision Date: 31 August 1926
• Docket Number: No. 4085.,4085.
• Citation: 286 S.W. 733
• Parties: Ex parte PERSE.
• Court: Missouri Court of Appeals

286 S.W. 733

Ex parte PERSE.

No. 4085.

Springfield Court of Appeals. Missouri.

August 31, 1926.

Original proceeding by S. P. Perse for habeas corpus. Petitioner remanded to custody.

D. H. Kemp, of Cassville, for petitioner.

John T. Burgess, Pros. Atty., of Monett, for respondent.

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:

"On this 21st day of May, 1925, comes Hugh Brixey and files his complaint under oath, charging the defendant S. P. Perse with having in his possession one quart of corn whisky, and thereupon I issued a warrant against the said S. P. Perse and delivered to the said Hugh. Warrant returned executed by having the body of the defendant before me as commanded, and on the 22d day of May the defendant was brought before me and was recognized in the sum of $500 for his appearance on the 26th day of May; the defendant comes and makes confession and was fined $200 and sentenced to the county jail for 6 months, with stay of execution for 90 days with recognizance in the sum of $500, with S. P. Perse as principal and J. F. Wilson and P. Hilton as sureties."

After the expiration of 90 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 90 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 6 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 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 clay. Grubbs et al. v. Cones 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. 493, 120 S. W. 66, 133 Am. St. Rep. 477; Connors v. St. Joseph, 237 Mo. 612, 619, 141 S. W. 638; State v. White (Mo. Sup.) 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, Rev. Stat. 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 in the township in which the prosecution was begun must appear somewhere upon the face of the proceedings. That fact could not be shown by parol. State v. Taylor, 167 Mo. App. 104, 150 S. W. 1126; State v. Sexton, 141 Mo. App. 694, 125 S. W. 519.

It is not necessary, however, that the venue be stated in the body of the information, but the facts as to venue stated in the margin shall be taken to be the venue for all the facts stated in the body of the information. Rev. Stat. 1919, § 3900; State v. Taylor, supra. The justice docket does not Show the township. The commitment issued by him does show it. The information filed by the prosecuting attorney shows in the margin the following:

"Before S. R. Reynolds, a Justice of the Peace of Flat Creek Township, Barry County, Missouri."

The body of the information alleges that the offense was committed in Flat Creek township, Barry county, Mo. We think that is a sufficient showing as to the venue.

We think the jurisdiction of the justice of both the subject-matter and the person of defendant sufficiently appeared. The remaining question was whether the entries on the justice docket are sufficient to show a valid judgment. It has recently been said by our Supreme Court that die requisites necessary to the...