Ex Parte Roberts

• Decision Date: 17 December 1901
• Citation: 65 S.W. 726,166 Mo. 207
• Parties: Ex parte ROBERTS.
• Court: Missouri Supreme Court

65 S.W. 726

166 Mo. 207

Ex parte ROBERTS.

Supreme Court of Missouri, Division No. 2.

December 17, 1901.

CONSTITUTIONAL LAW — DUE PROCESS OF LAW — CARRYING BURGLARS' TOOLS — HABEAS CORPUS — USELESS WRIT.

1. The legislature has the power to enact any law not prohibited by the constitution.

2. Rev. St. 1889, § 1892, which prohibits a person from making or mending burglars' tools, or from having the same in his custody or concealed about his person, is not violative of Bills of Rights, § 30, declaring that no person shall be deprived of life, liberty, or property without due process of law.

3. The court will not issue a writ of habeas corpus, where it could only result in petitioner's being immediately remanded for want of any ground in his petition for relief.

Petition by Joseph Roberts for a writ of habeas corpus. Writ denied.

The following is the petition in the case:

"To the Honorable Supreme Court of Missouri, Division No. 2: Your petitioner, Joseph Roberts, respectfully represents and states to this court that he is now illegally and unlawfully imprisoned and restrained of his liberty by one F. M. Wooldridge, warden of the Missouri state penitentiary; that the facts concerning the unlawful imprisonment

of your petitioner are as follows, to wit: That your petitioner was at the November term, 1900, of the criminal court of Buchanan county, indicted by the grand jury, under section 1892, Rev. St. Mo. 1899, for having in his possession certain tools, charged and alleged to be burglars' tools; that upon a trial upon said indictment your petitioner was by the jury found guilty, and sentenced to the Missouri state penitentiary for a term of five years; that he has since the ____ day of December, 1900, been illegally restrained of his liberty by the said F. M. Wooldridge, and is now unlawfully and illegally imprisoned and restrained of his liberty by the said F. M. Wooldridge, under and by virtue of the illegal and unlawful judgment and sentence of said criminal court of Buchanan county. Your petitioner alleges and avers that said section 1892, Rev. St. Mo. 1899, is unconstitutional and void, in that it violates the provisions of section 30, art. 2, of the constitution of the state of Missouri, and that by virtue of said prosecution and conviction under said section 1892, Rev. St. Mo. 1899, your petitioner has been deprived of his liberty, and is now being deprived of his liberty, without due process of law. Your petitioner alleges and avers that said section 1892, above referred to, is unconstitutional and void because it makes it a felony for a person to have in his possession the tools named therein, without regard to the intent for the purpose he has them. Your petitioner states that the judgment and sentence of the court aforesaid, so rendered as aforesaid, is absolutely void and of no effect, and his confinement under and by virtue of said judgment and sentence is wholly unlawful and illegal. Your petitioner states that he is entitled to his discharge from said penitentiary; that a certified copy of the indictment is hereto attached, and made a part of this petition. Your petitioner states that no application for the relief herein sought has been made to or refused by any court or officer to your honor. Your petitioner further states that there is now no judge of the circuit court in Cole county. Wherefore your petitioner prays for a writ of habeas corpus under the habeas corpus act, and under the hand of your honors, commanding the said F. M. Wooldridge to produce the body of your petitioner before your honors when and where you may direct, and that your petitioner, upon the hearing of the grounds of his imprisonment, may be discharged therefrom, and to grant your petitioner such other and further relief as may seem to your honors fit and proper, and as the nature of the case may require. Joseph Roberts.

"State of Missouri, County of Cole. Joseph Roberts, being by me duly sworn, upon his oath says that the matters and things set forth in the above and foregoing petition are true. Joseph Roberts.

"Subscribed and sworn to before me this 10th day of Oct., 1901. My commission expires Dec. 28th, 1902. F. E. Luckett, Notary Public. [Seal.]"

The indictment was as follows:

"State of Missouri, County of Buchanan — ss.: In the Criminal Court of Buchanan County, at the November Term Thereof, 1900. The grand jurors of the state of Missouri, within and for the county of Buchanan aforesaid, being duly impaneled and sworn, upon their oaths do present that John Graham, George Ellis, and Joseph Roberts on...