Ex Parte Thornberry

• Decision Date: 05 October 1923
• Citation: 300 Mo. 661,254 S.W. 1087
• Parties: Ex parte THORNBERRY.
• Court: Missouri Supreme Court

254 S.W. 1087

300 Mo. 661

Ex parte THORNBERRY.

Supreme Court of Missouri, en Banc.

October 5, 1923.

Application for writ of habeas corpus by James Thornberry, for discharge from the penitentiary. Prisoner remanded.

C. I. Bennington, of Sedalia, for petitioner.

Jesse W. Barrett, Atty. Gen., for. J. S. Crawford, Warden of the Penitentiary.

WALKER, J.

The writ of habeas corpus is here invoked to effect the release of the petitioner from the penitentiary, where he Is imprisoned under a two years' sentence rendered by the circuit court of Pettis county, following his plea of guilty to a felony, with the commission of which he was formally and arraigned in that court.

The return filed herein, of the warden of the penitentiary, omitting the caption and his official signature, is as follows:

"For return to the writ of habeas corpus,

J. S. Crawford, warden of the Missouri State Penitentiary, states that he has the said James Thornberry in his custody by virtue of and under a certified copy of a sentence and judgment of the circuit court of Pettis county, Missouri, a copy of which is hereto annexed.

"And the said J. S. Crawford further states that the petitioner, having waived the production of his body before this honorable court on the hearing of the application for a writ of habeas corpus or at any other time that he would be entitled to be present in the course of this proceeding, which waiver is now on file with the papers in this case, for this reason does not produce the body of the petitioner."

Attached thereto is the following:.

"In the Circuit Court of Pettis County. "June Term, 1923.

"Be it remembered, that heretofore, to wit, on the 20th day of June, A. D. 1923, at the regular June term of the circuit court, begun and held at the courthouse, in the city of Sedaliah, in the county and state aforesaid, before the Honorable Dimmitt Hoffman, judge of he Thirteith judicial circuit of the state of Missouri, and judge of said court, the following among other proceedings were had, to wit:

"Now at this day comes the prosecuting attorney for the state, and also comes the defendant herein, in person, in custody of the sheriff of this county, and in the presence of his attorney and counsel in open court, whereupon said defendant is informed by the court that he has heretofore been sentenced to the penitentiary of the state of Missouri for a period of two years, at which time a stay of execution was granted until 6 o'clock in the afternoon of the day on which sentence of the court was passed, conditioned that if he was found in Pettis county after that time he was to be arrested and committed to the pententiary as per sentence heretofore passed.

"It is therefore ordered by the court that the defendant, James Thornberry, having been found and arrested in said county of Pettis since the stay of execution has expired, be committed accordingly, and that the sheriff of this county shall, without delay, remove and safely convey the said defendant to the said penitentiary, there to be kept, confined, and treated in the manner directed by law, and the warden of said penitentiary is required to receive and safely keep him, the said defendant, in the penitentiary aforesaid until the judgment and sentence of the court herein be complied with, or until the said defendant shall otherwise be discharged by due course of law. It is further considered, ordered, and adjudged by the court that the state have and recover of said defendant the costs in this suit expended, and that execution issue therefor."

The certificate of clerk that the foregoing is a true copy is omitted.

I. The state, in opposing the granting of this writ, urges that the stay granted was in the nature of a parole and the petitioner, having violated the same, is not entitled to be discharged. The modification made by the judge of the circuit court, of the otherwise formal judgment of conviction, bears no resemblance to a parole. This form of clemency authorized by our law (sections 4157-4167, R. S. 1919) possesses certain distinctive features which constitute necessary conditions to the legal operation of the statute. The utter absence from the record of all of these conditions renders a specific reference to them unnecessary. Ex parte Cornwall, 223 Mo. loc. cit. 270, 122 S. W. 666, 135 Am. St. Rep. 507. It will be enough to say, therefore, that the construction of this judgment as embodying a parole is not tenable and cannot be sustained.

II. The condition of this record is such that the authorized consideration of the matter at issue might be limited to a somewhat narrow compass, but for the construction placed by the petitioner upon the cases cited in support of the issuance of the writ. While a return to a writ of habeas corpus is not of itself conclusive under our practice, as it was at common law and under the Habeas Corpus Act (31 Car. II, c, 2) where, as here, the facts pleaded in the return are not denied they are to be taken as the ultimate facts in the case. In re Tartar, "Be it remembered, that heretofore, to wit, on the 20th day of June, A. D. 1923, at the regular June term of the circuit court, begun and held at the courthouse, in the city of. Sedalia, in the county and state aforesaid, before the Honorable Dimmitt Hoffman, judge of the Thirtieth judicial" circuit of the state of Missouri, and judge of said court, the following among other proceedings were had, to wit 278 Mo. loc. cit. 365, 213 S. W. 94; In re Breck, 252 Mo. loc. cit. 319, 158 S. W. 843; Ex parte Durbin, 102 Mo. loc. cit. 104, 14 S. W. 821; Ex parte Bryan, 76 Mo. 253. Constituting, as the return does, the principal pleading, it is not intended to be responsive to the petition but to the writ; Its allegations, therefore, may be met as the statute (section 1903, R. S. 1919) provides, by a denial of the material facts set forth therein or the allegation of any fact to show that the detention complained of is unlawful and that the petitioner is entitled to a discharge. In the absence of such a pleading the facts set up in the return become conclusive; and the only question left for determination is whether these facts authorize the restraint as a matter of law.

III. First let us consider the formal sufficiency of the return. Here, as in many other jurisdictions, the requisites of a return have been prescribed by statute. Section 1891, R. S. 1919. They are, in short, that the person upon whom the writ has been served shall state if he has the petitioner in his custody and if so the authority for such restraint; if detained by virtue of any writ, warrant, or other written authority, a copy thereto shall be annexed to the return.

The warden of the penitentiary, as disclosed by his return, states that he has the petitioner in his custody by virtue of and under a certified copy of a sentence and judgment of the circuit court of Pettis county, and attaches thereto a copy of the latter. This copy embodies all of the essentials of a formal judgment upon a conviction for a felony. Section 4059, R. S. 1919. Aside from the admission of its correctness in the failure of the petitioner to deny the same, its verity is fur her attested by the general presumption of legality which always attends the records of a judicial proceeding. As a further manifest of the conformity of this sentence with the facts upon which the original judgment was rendered, It is shown that the petitioner was present when it was rendered, and neither then raised or now raises any objection to its correctness. However, it is apparent from the instrument itself that it is a rescript or a repetition of a judgment, theretofore entered against the petitioner, which remains unsatisfied and upon which he is resentenced. While this is not urged as a ground for his discharge its presence on the face of the return renders its consideration pertinent in determining the legality of the Petitioner's restraint. It may be admitted that it would have been more nearly in conformity with the literal requirements of the statute (section 4059, supra) if the commitment had been based upon the original judgment; but, in what respect hen the petitioner suffered injury by reason of his formal resentence and commitment thereunder? A judgment was outstanding against him, which without any pretense remains unsatisfied. His arrest by the officer was authorized upon this unsatisfied judgment, which, if the officer did not have a copy of same, he could have obtained it from the clerk of the circuit court. Section 4060, R. S. 1919. The proceeding, therefore, of haling the petitioner into court to be resentenced and of committing him upon such resentence, while irregular and unnecessary, in view of the fact that this latter sentence conforms in all its material features to the original, is not of sufficient magnitude to warrant the petitioner's discharge. If it was deemed necessary, this court might order the clerk of the circuit court to transmit to the warden a copy of the original sentence and judgment, and require the latter to make a return based thereon. Fully apprised as we are of all of the facts as disclosed, by the return, we do not deem the course indicated necessary, either in protection of the rights of the petitioner or in furtherance of a wholesome administration of the criminal law. We are not inclined, therefore, to grant this discharge on the ground that the instrument appended to the return, although embodying all of the material features of the original judgment, is not a literal copy of same. It is the essentials of the judgment and not its mere letter that are required by the statute (section 1891, R. S. 1919) to accompany the return. This conclusion finds ample support in the cases cited and discussed by Graves, J., in Ex parte Hagan (Mo. Sup.) 245 S. W. 336. These cases, while directed more particularly to the warrant under which the prisoner was held, clearly indicate that it is the requisites of a lawful...