In re Coder, 17448.

• Citation: 44 S.W.2d 179
• Decision Date: 05 December 1931
• Docket Number: No. 17448.,17448.
• Parties: IN THE MATTER OF APPLICATION OF CHARLES CODER FOR WRIT OF HABEAS CORPUS.
• Court: Court of Appeal of Missouri (US)

44 S.W.2d 179

IN THE MATTER OF APPLICATION OF CHARLES CODER FOR WRIT OF HABEAS CORPUS.

No. 17448.

Kansas City Court of Appeals. Missouri.

December 5, 1931.

Application by Charles Coder for Writ of Habeas Corpus.

Before Francis H. Trimble, one of the Judges of the Kansas City Court of Appeals in vocation.

PETITIONER DISCHARGED.

Samuel W. Liske for relator.

W.M. Anderson, Prosecuting Attorney for respondent.

TRIMBLE, J.

This is an application for a writ of Hubeas Corpus in behalf of one, Charles Coder now confined in the Cass county jail at Harrisonville Missouri under a commitment from a justice of the peace of said county, setting forth that said Charles Coder was on October 21, 1931, by an information filed by the Prosecuting Attorney of that county charged with "unlawful assemblage" and, upon trial was by the jury "found guilty and his punishment assessed at a fine of $500 and 365 days' imprisonment in the county jail," on which judgment was rendered and defendant ordered confined for the time specified.

The complaint upon which the warrant for the prisoner's arrest is founded, was made by W.M. Anderson and is dated October 19, 1931 while the warrant is dated October 17, 1931. The information, signed by W.M. Anderson. Prosecuting Attorney of Cass county, Missouri, was sworn to by him and filed on the 27th of October, 1931. The record of the judgment of the justice in which the prisoner was fined $500 and imprisoned for a year bears no date at the outset unless the notation "19th — 1931" at the beginning of the judgment may be regarded as such. But immediately after the recital of the offense charged against the prisoner is an entry "defendant pleads not guilty and waives reading of information, October 21, 1931." The summons for a panel of jurymen requires them to appear October 21, 1931; the subpoenas for witnesses command them to appear on October 21, 1931; and the Commitment, by virtue of which the sheriff received and now holds the prisoner, recites that the trial was held on October 21, 1931.

The complaint, upon which the warrant was issued, recites that "on the 17th day of October, 1931, at the county of Cass and State of Missouri one Charles Coder did then and there unlawfully and wilfully with Sam Stevens and many others assemble together in Pleasant Hill Township county of Cass and State aforesaid with intent then and there to assist each other in the doing of an unlawful act; which was to advocate the Communist Party and to adhere to the Statutes of the Communist's International. And he the said defendant did advocate the same and accepted subscriptions for the same. And that the said defendant did then and there unlawfully, wilfully and intentionally make statements to the effect of the abolition of all forms of government as provided by the State of Missouri, and as provided by the Constitution of Missouri and the General and Revised Statutes of Missouri, 1929, with intent then and there to cause mob violence by making statements to the effect that the time had come when it was necessary that all classes raise in rebellion against all forms of government and do the same with force and arms, and with intent then and there to distribute Soviet or Communist literature, all of which he the said defendant did then and there unlawfully against the peace and dignity of the State."

The Information charged that at the county of Cass and State of Missouri, and in the Township of Pleasant Hill, one Charles Coder on the 17th day of October, 1931, "did then and there unlawfully and wilfully with Sam Stevens and many others assemble together in Pleasant Hill Township, county of Cass and State aforesaid, with intent then and there to assist each other in the doing of an unlawful act; which was to advocate the Communist Party and to adhere to the Statutes of the Communist's International. And he the said defendant did advocate the same and accept subscriptions for the same. And that the said defendant did then and there unlawfully and wilfully and intentionally make statements to the effect of the abolition of all forms of government as provided by the State of Missouri, and as provided by the Constitution of Missouri, and by the General Revised Statutes of Missouri, 1929, with intent then and there to cause mob violence by making statements to the effect that the time had come when it was necessary that all classes raise in rebellion against all forms of government and do the same with force and arms and with intent then and there to distribute Soviet or Communistic literature of all of which he the said defendant did then and there unlawfully and wilfully, against the peace and dignity of the State."

The record of the judgment of the justice in setting forth the offense, followed the wording of the complaint and information except that the clause "and accept subscriptions for the same" was omitted or not included. Otherwise the record as to the offense followed verbatim the complaint and information.

The record of the judgment further recites "Waives the panel of twelve jury and accepts jury of six men. Jury finds defendant guilty of charge and assess his punishment, one year in county jail and $500 fine."

The verdict returned by the jury reads as follows: "We the jury find the defendant guilty of unlawful assemblage as set out in the information and assess his punishment at one year in the county jail and a fine of $500 dollars. C.E. BAILEY, Foreman."

Upon the appearance of the sheriff with the prisoner in charge also came counsel for petitioner and the prosecuting attorney of Cass county who appeared for the sheriff and State. A motion was filed by said prosecuting attorney to dismiss the proceeding because he was not notified as required by Rule 31 of our court. The rule, if applicable to a proceeding before one of the judges in the vacation of the court, or to an application of the kind here presented, does not provide that after the writ has been issued and appearance thereto has been made, a failure to notify the prosecuting attorney will authorize a dismissal of the proceeding. There was a dispute as to the sufficiency of the notice to the prosecutor, but as he appeared, and the judge granted the prosecutor additional time after the hearing in which to present the law applicable to his side of the case, there is no ground for sustaining the motion to dismiss, even if a dismissal for failure to notify the prosecutor is otherwise permissible or proper. The motion to dismiss is overruled.

The sheriff filed a motion to quash the writ because there was not tendered to him any money as set out in section 1438. Revised Statutes 1929, to defray expense of transporting the prisoner from the jail in Cass county to the courtroom in Kansas City where the hearing on the writ was had. In view of the fact that petitioner urged that such fees and expenses had been guaranteed the sheriff at the time and, on the announcement of the judge hearing the...