Ex parte Saxbury
| Decision Date | 29 June 1929 |
| Docket Number | 29811 |
| Citation | 18 S.W.2d 1041,323 Mo. 194 |
| Parties | Ex Parte H. M. Saxbury, Petitioner |
| Court | Missouri Supreme Court |
Writ denied and prisoner remanded.
Murrell & Murrell and Walter E. Sloat, Special Assistant Attorney-General for petitioner.
(1) The power of this court to grant the writ of habeas corpus cannot be questioned. This power is granted to the court by the Constitution. Constitution of Missouri, Art. 6, sec. 3; In re Hagan, 295 Mo. 435. (2) The great weight of authority, both in this country and in England, is to the effect that habeas corpus is the proper action to remove a prisoner from a penitentiary, jail, or insane asylum where he is confined, for the purpose of trying him on a charge of felony. Rigor v. State, 101 Md. 465; Jones v Commonwealth, 20 Va. (Grattin's Reports) 848; Commonwealth v. Ramunno, 219 Pa. St. 204; State v. Wilson, 38 Conn. 126; People v. Mason, 9 Wend (N. Y.) 505; Regina v. Peacock, 12 Cox's Crim. Cas. 21; Regina v. John Day, 3 Fos. & Fin. 526. (3) The accused must be tried before the Statutes of Limitations run. This court has held that Statutes of Limitations run against the accused while he is confined in the penitentiary; also the statutes requiring that a defendant be tried not later than the fourth term after he be informed against are also in force. State ex rel. Stevens v. Wurdeman, 295 Mo. 566. (4) A prisoner may be prosecuted in this State even though he be under sentence at the time. The fact that a prisoner is under sentence does not protect him from being again placed upon trial for a different offense. State ex rel. Meininger v. Breuer, 304 Mo 381.
George N. Davis and Matthews & Jones for respondent.
(1) The change in defendant's incarceration, location and place cannot alter the case of laches. The prosecuting attorney permitted him to be sent to the penitentiary some months after the complaint was filed, and did not afford him a preliminary examination, but waited over a year. In such case laches can be invoked under the Constitution, Art. 2, sec 22; State v. Nelson, 279 S.W. 403; Troll v. St Louis, 257 Mo. 626. (2) The defendant should be finally and completely discharged from the charge pending against him in the justice court, because two terms of court have passed since the complaint was filed, and the prosecuting attorney failed to file an information during said period of time. While this does not exactly meet the statute, it meets the spirit of the statute, and the statute under those circumstances is properly invoked, and he should be discharged. State v. Ware, 145 Mo. 163. (3) Sec. 3847, R. S. 1919, provides that all felonies shall be prosecuted by indictment or information. Section 3848 provides that no prosecuting attorney shall file an information charging any person with any felony until such person shall have been accorded the right of a preliminary examination before some justice of the peace in the county in which the offense is alleged to have been committed, and if, upon such hearing, the justice shall determine that the alleged offense is bailable, such person shall thereupon be admitted to bail, conditioned for his appearance on the first day of the next regular term of the circuit court, to answer to such charges as may be preferred against him and not to depart said court without leave. That statute on its face shows that one of the reasons why a preliminary shall be had is to determine the amount of bail to be returnable to the next term of the circuit court; and this court will take judicial cognizance of the fact that two terms of the Circuit Court of Schuyler County, have passed since this complaint was filed and that as yet no preliminary examination has been had. Suppose that he was returned to Schuyler County for a preliminary, the justice must follow the statute and fix his bond returnable to the next term of court; if not granted, remand him to jail; if he is then taken to the penitentiary and he had given a bond, there would be a forfeiture of the bond; if he is remanded to jail and taken to the penitentiary, there would have to be another writ of habeas corpus to take him out of the penitentiary for trial; so the proceeding in the justice court would be a farce. The remedy, if any, would be by grand jury indictment. Under the statute the prisoner should be discharged on the grounds of laches, as well as under the Constitution, Sec. 22, Art. 2. (4) State ex rel. Meininger v. Breuer, 304 Mo. 381, does not apply to this case and is not in point for several reasons. The first reason is that that case was prohibition and not habeas corpus, and the second and more important reason is that in the Meininger case there was an indictment and in the case at bar there is no indictment or information. In fact, there is no legal charge filed against the defendant, on which he could be brought to trial. There is only an affidavit asking that it be investigated to see whether a legal indictment or information can be found.
In that case the question of a speedy trial was not involved, neither was the question involved wherein a plea of guilty was procured on a promise of discharge. Another defense is that in the case at bar an affidavit may be filed today, one tomorrow, and there may be one hundred affidavits filed at different times in one hundred different places. Anybody has the right to file those affidavits; but when the prisoner is in the custody and under sentence, the court will hardly recognize these affidavits because the State is not deprived of its remedy against the defendant, but still has the right to an indictment by a grand jury.
Blair, J. All concur, except Atwood, J., not sitting.
OPINIONBLAIR
Habeas Corpus. Olin U. Murfin, herein referred to as defendant, is a convict in the state penitentiary, under sentence of the Circuit Court of Schuyler County, for a term of five years, from December 12, 1927, for the crime of accepting a deposit in the Farmers & Merchants Savings Bank of Lancaster, Missouri, knowing said bank to be in a failing condition. Petitioner asks that said defendant be temporarily released from confinement, to the end that he may be taken to Schuyler County to answer a complaint of felony filed by petitioner as prosecuting attorney of said county. Such complaint is pending before a justice of the peace of said county and charges defendant with the crime of embezzlement as cashier of said bank.
The warden of the penitentiary has filed his return in conventional form, alleging that he holds defendant under a commitment issued by the Circuit Court of Schuyler County, a certified copy of which commitment is attached to his return. By leave of court defendant Murfin has filed a return in his own behalf in which he urges various reasons why he should not be taken from the penitentiary and returned to Schuyler County for a preliminary hearing upon said complaint. In the view we take of the case, it is unnecessary to set out or consider more than one of such reasons.
In State ex rel. Billings v. Rudolph, 322 Mo. 1163, decided by this court on May 31, 1929, it was expressly ruled that a convict in the state...
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