Ex Parte Simpson, No. 28647.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBlair
Citation300 S.W. 491
PartiesEx parte SIMPSON.
Docket NumberNo. 28647.
Decision Date14 December 1927
300 S.W. 491
Ex parte SIMPSON.
No. 28647.
Supreme Court of Missouri, in Banc.
December 14, 1927.

[300 S.W. 492]

Original application by Leo Simpson for a writ of habeas corpus against Leslie Rudolph, Warden of the State Penitentiary. Petitioner discharged.

Preble Hall, of Kansas City, for petitioner. North T. Gentry, Atty. Gen., for respondent.

BLAIR, J.


Habeas corpus. Petitioner, a prisioner in the state penitentiary, claims that his imprisonment is illegal. The production of his body before the court and the issuance and service of the usual writ were waived. The warden, Leslie Rudolph, has filed his return as if our formal writ had issued. The case was submitted on the pleadings and certified copies of the records of Division 2 of this court and of the circuit court of Jackson county.

On July 30, 1921, petitioner was by the circuit court of Jackson county duly sentenced to imprisonment in the state penitentiary for a term of 2 years for the crime of grand larceny. Petitioner appealed to the Supreme Court from said judgment and, upon the acceptance by the trial court of an appeal bond, was released from custody and permitted to go at large pending the action of Division 2 upon his appeal.

Petitioner failed to perfect his appeal within 12 months. For some undisclosed reason, no action to dismiss the appeal was taken until February 25, 1926, when the appeal was dismissed by Division 2 of this court upon the motion of the Attorney General. The mandate of Division 2 went down March 1, 1926. A certified copy thereof came into the possession of the warden. He claims to hold petitioner at this time under said mandate, "petitioner having been formerly held on commitment from the circuit court of Jackson county, Mo., dated February 8, 1926." The contention quoted introduces a second chapter of the story.

In January, 1926, petitioner again found himself in the toils of the law and was convicted of the crime of burglary in Jackson county. The jury assessed his punishment at imprisonment in the penitentiary for 2 years. On January 8, 1926, the circuit court of Jackson county sentenced petitioner on the verdict. A certified copy of that judgment accompanied the return of the warden in this case. It fixed no time when the term of imprisonment should begin.

On the next day, and during the same term of court, to wit, on January 9, 1926, the judgment entered on January 8, 1926, was, by the circuit court of Jackson county, set aside and for naught held, and the court thereupon entered another judgment, wherein and whereby it was ordered that the term of imprisonment therein imposed upon petitioner should commence at the expiration of the term of imprisonment in the grand larceny case above mentioned. As the warden has not attached a copy of the judgment of January 9, 1926, we assume that the certified copy of the first judgment, which was afterwards set aside, is the only one which he received.

Petitioner was granted an appeal to the Supreme Court in the burglary case. His appeal bond was fixed at $5,000. He contends that the trial court would not permit him to give bond because the prosecuting attorney had discovered...

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2 practice notes
  • State v. Campbell, No. 46064
    • United States
    • United States State Supreme Court of Missouri
    • December 9, 1957
    ...or authority to adjudicate that the terms should run concurrently. Herring v. Scott, Mo., 142 S.W.2d 670, 672; Ex parte Simpson, Mo., 300 S.W. 491, However, the inclusion of an unlawful and ineffective provision in a judgment of conviction, otherwise valid, does not render the entire judgme......
  • Ex Parte Williford v. Stewart, No. 40126.
    • United States
    • United States State Supreme Court of Missouri
    • November 27, 1946
    ...(Perm. Ed.) "Commitment," p. 832; Reardon v. Frace, 344 Mo. 448, 451-2, 126 S.W. (2d) 1167, 1168; Ex parte Simpson (Mo. banc), 300 S.W. 491, The judgment of the trial court being controlling, we must reject the spurious recital in the commitment that the burglary and larceny four ......
2 cases
  • State v. Campbell, No. 46064
    • United States
    • United States State Supreme Court of Missouri
    • December 9, 1957
    ...or authority to adjudicate that the terms should run concurrently. Herring v. Scott, Mo., 142 S.W.2d 670, 672; Ex parte Simpson, Mo., 300 S.W. 491, However, the inclusion of an unlawful and ineffective provision in a judgment of conviction, otherwise valid, does not render the entire judgme......
  • Ex Parte Williford v. Stewart, No. 40126.
    • United States
    • United States State Supreme Court of Missouri
    • November 27, 1946
    ...(Perm. Ed.) "Commitment," p. 832; Reardon v. Frace, 344 Mo. 448, 451-2, 126 S.W. (2d) 1167, 1168; Ex parte Simpson (Mo. banc), 300 S.W. 491, The judgment of the trial court being controlling, we must reject the spurious recital in the commitment that the burglary and larceny four ......

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