Ex Parte Weinhause
| Decision Date | 01 December 1919 |
| Docket Number | No. 13298.,13298. |
| Citation | 216 S.W. 548,202 Mo. App. 245 |
| Parties | EX PARTE WEINHAUSE. |
| Court | Missouri Court of Appeals |
The relator herein was indicted in the superior court of Boston, Mass., for the crime of larceny. He after wards left that state and came to Kansas City, Mo. Afterwards, on the 2d day of June, 1919, the Governor of Massachusetts made requisition upon the Governor of Missouri that he cause relator to be apprehended and delivered to John F. Mitchell to be by him returned to the state of Massachusetts, there to be dealt with according to law.
In compliance with such requisition the Governor of Missouri, on the 13th of June, 1919, issued his warrant and caused relator to be apprehended and placed in the custody of Mitchell, and the latter was about to convey him to the state of Massachusetts, when he applied to this court for a writ of habeas corpus, in which application he stated that he was illegally restrained of his liberty and set up facts which it is claimed show that the Governors of Massachusetts and Missouri were without authority to take the action just recited. A writ was duly issued directing Mitchell to produce the body of relator before the court, that the cause of his detention and restraint could be inquired into.
Mitchell produced relator in court with a return reciting why and by what authority he was detaining him, and that he was intending to take him to the state of Massachusetts. It is set up in this return that relator was indicted by a grand jury for the county of Suffolk, Mass., on the 9th day of March, 1918, "upon the charge of having committed larceny from a certain conveyance, to wit, the wagon of one James Cavenaugh, on the 14th day of February, 1918, the same being a felony in the state of Massachusetts"; that relator was arrested under a warrant issued on such indictment; that there were certain continuances, when finally, on the 25th day of June, 1918, he pleaded guilty to said indictment; that afterwards, on the 19th of February, 1919, relator "was called to come in said court and answer further to said indictment," but that he "did not appear, but made default." This is followed by an allegation that application was made for a requisition on the Governor of Missouri, as already stated.
Relator having asked that a commissioner be named to take testimony in the cause, we appointed James T. Aylward, Esq., of the Kansas City bar. Mr. Aylward heard the evidence offered, and made due return thereof, from which it appears that relator was indicted for larceny, and that he pleaded guilty, and that this was his first offense. But the following was also shown, and was uncontradicted: There is a statute in Massachusetts providing a probation system in that state, applicable to persons prosecuted for larceny. Probation officers with prescribed duties are provided for. By the laws of that state (Laws 1902, p. 1833, c. 217, § 84) each probation officer is required to examine into the nature of every criminal case, and may recommend that any one convicted be placed upon probation, and that such person may be released on probation. It is also provided in that statute (page 1756, § 52) that, if upon first conviction it is shown that the act of stealing was a simple larceny, and the convicted party makes restitution to the person injured to the full value of the property stolen, he shall not be imprisoned in the state prison.
It was further shown that by the Laws of Massachusetts of 1907 (chapter 335, p. 289), if a person is placed on probation upon condition that he make restitution to the person injured, and payment is not made at once, the court may order that it be paid to the probation officer, who shall give receipts and keep a record and shall pay the money to the person injured.
It appears from the testimony that the probation officer, the state's attorney, the relator, and the injured party agreed that relator should make restitution in the sum of $1,000; that he paid $550 of that sum to such officer on the 25th of June, 1918, and took his receipt; such payment was made in courtroom while court was in session.; that he was then on bond or bail, but that he was allowed to go without bond, with the understanding between the probation officer, the state's attorney, the injured party, and relator that upon payment of the balance of $450 he would be finally released from all further prosecution; that on the 4th of December following he came into court, paid the proper probation officer $450, the balance due, and took his receipt, as in the instance of the first payment. He was then released.
Relator had the receipts above referred to in his possession, and they were filed here as exhibits. Their genuineness has not been disputed; and though the application for this writ was made more than three months ago, in which substantially the facts above recited were set out, no denial has ever been made. We therefore...
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