In re Bauer
| Decision Date | 15 November 1892 |
| Citation | 20 S.W. 488,112 Mo. 231 |
| Parties | In Re Bauer |
| Court | Missouri Supreme Court |
Writ Denied.
Wolf & Bowden for petitioner
(1) The appeal, the giving of the appeal bond by defendant, and the approval of said bond by the court in manner and form as alleged and shown, necessarily imply a stay of execution of sentence in petitioner's said cause and his discharge from custody, pending the appeal in this court. (2) The appeal bond having been executed, filed and approved, and defendant discharged from custody pending the appeal, leaves the securities named in said bond no power to control defendant and no authority to surrender him, unless defendant breaks a condition of the bond, a thing that has not been shown to have been done by defendant in the case at bar. (3) The arrest by securities of petitioner upon certified copy of the bond, and his delivery to the sheriff of Greene county was the exercise of authority arbitrarily assumed by said securities, and was without authority of law; but, having been assumed and exercised, the action of the judge of the circuit court of the twenty-first judicial circuit in discharging petitioner under the habeas corpus chapter has placed it beyond the power of these securities to again deliver this petitioner to the sheriff of Dallas county, or for that sheriff to in any way interfere with the movements or wishes of this petitioner, as said sheriff sought and seeks to do.
Habeas Corpus.
The petitioner is confined in the state penitentiary, and has sued out a writ of habeas corpus in this court charging that he is illegally restrained of his liberty by the warden.
The writ issued and the warden at once made return thereto. It was stipulated by both parties that the prisoner should remain in the prison in the custody of the warden, until the matter should be determined in this court.
It appears from the petition and return that the petitioner was sentenced by the circuit court of Dallas county at the April term, 1892, to imprisonment in the penitentiary for a term of four years from the eighth day of April, 1892, upon a verdict of guilty, on an indictment for perjury, preferred in Webster county; that the sentence of said court required the sheriff of Dallas county without delay to remove and safely convey said petitioner to said penitentiary.
From that judgment an appeal was prayed and granted to this court but the circuit court of Dallas county made no order directing that said appeal should operate as a stay of proceedings as required by section 4279 of Revised Statutes, 1889. It does appear that after said appeal was granted the petitioner filed in said Dallas circuit court his bond for appeal, which was approved by the court on April 12, and that petitioner was in fact released from custody; and that afterwards on the twenty-eighth day of July, 1892, the sheriff of Dallas county rearrested petitioner and delivered him, together with a certified copy of the sentence, into the custody of the warden who detains him by virtue of said sentence. It further appears in the return of the warden that, after the execution of the bond and the release of the petitioner, the sureties thereon surrendered him to the sheriff of Dallas county.
I. The petitioner contends that as he had given bond for appeal to this court, and his appeal was undetermined, the sheriff had no authority to rearrest him and deliver him to the warden, and the warden has no right to detain him.
The right of appeal is purely statutory. The judgment of the Dallas circuit court is in full force and effect until it shall be reversed. By that sentence the sheriff was directed to place petitioner in the custody of the warden. The appeal taken by defendant could not, of itself, supersede the sentence of the court. This is the express provision of the statute. To stay the operation of this sentence it was necessary for him to have procured an order from the supreme court or a judge thereof, or the court in which the judgment was rendered or the judge thereof, expressly directing that such appeal should operate as a stay of execution on said judgment. Sec. 4279.
But while this is true of the appeal alone, it was most clearly the intention of the legislature, before incarcerating a citizen in the penitentiary, to allow him to be heard on his appeal, and in the meantime suspend the proceedings in either of two cases: First, if the court in which he was convicted or this court should direct the stay as provided in section 4279; or, secondly, if the court in which he was convicted, or the judge thereof, or this court or a judge thereof, should admit him to bail pending his appeal. Unless we so construe sections 4283 and 4284 they are meaningless. What consideration would there be for the prisoner entering into a bond for his appearance in this court if his recognizance did not secure him immunity from the galling sensation of being recognized and treated as a felon, and compelled to don the felon's...
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