Ex Parte Tuvell
| Decision Date | 03 December 1923 |
| Citation | 256 S.W. 463,301 Mo. 251 |
| Parties | Ex parte JAY TUVELL, Petitioner |
| Court | Missouri Supreme Court |
Preliminary rule discharged.
The petitioner seeks a discharge from imprisonment in the penitentiary where, as is stated in his petition and in the warden's return, he is being held to satisfy two judgments rendered against him in the Circuit Court of Bollinger County, upon his pleas of guilty; one upon a charge of burglary under which he was sentenced to five years' imprisonment; and the other upon a charge of arson, under which he was sentenced to twenty-five years' imprisonment. No question is raised as to the regularity or the validity of the judgment upon the charge and plea of guilty for burglary. The burden of appellant's petition is directed to alleged errors in the record of the arson case, which it is contended vitiates the judgment therein.
It is evident from the allegations of the petition that the entertaining of the application for the writ -- its issuance having been waived -- was improvident. While habeas corpus is a writ of right, it is not a writ of course. When applied for by a private individual it is only to be issued in the exercise of a wise judicial discretion. [State ex rel. Walker v. Dobson, 135 Mo. l. c. 19.] The petition is the chart by which the court is to be guided in the exercise of that discretion. It is essential therefore that the petition state such facts as are necessary on their face to entitle the petitioner to a discharge (Sec. 1877, R. S. 1919) and it must show in what the illegal restraint consists as a reason why the writ should issue. [Ex parte Brockman, 233 Mo l. c. 157.] Unless, therefore, the petition shows that there is probable cause for the petitioner's discharge the writ should not be granted. [State ex rel. Barker v Wurdeman, 254 Mo. 561; State ex rel. Walker v. Dobson, supra.]
Does the petition contain this essential? It alleges the petitioner's detention under two judgments. To one of these no question is raised as to its regularity or validity.
Much vaunted as the writ has been as a remedial agent against arbitrary and unwarranted imprisonment, its issuance is not authorized where the application therefor does not disclose a detention under that character of imprisonment. Such a detention not appearing in one of the judgments under which the petitioner is held, was sufficient to authorize the court to refuse to consider the application for the writ. Lawfully detained under one judgment his remanding was inevitable regardless of the errors the record may disclose in regard to the other. The application therefore being futile, the consideration of same, other than to examine the petition, should have been denied.
Since the matter is before us, despite the futility of the application, a consideration of the other grounds urged by the petitioner is not deemed inopportune.
It is contended that the information charging arson was not signed by the prosecuting attorney in his official capacity.
Granting as we may, the legal necessity of the sufficiency of a criminal charge to sustain a judgment, the error complained of does not rise to that dignity. In other words, it is one of those irregularities due often-times to the carelessness or a lack of precision of prosecuting attorneys rather than intention, which will not, in the presence of an otherwise sufficient charge, authorize an interference with the judgment. We have frequently ruled upon this question, holding that where the body of the information contained the name and official title of the prosecuting attorney, a failure to sign the same officially...
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