In re Jilz
| Decision Date | 25 January 1877 |
| Parties | In re WILLIAM W. JILZ. |
| Court | Missouri Court of Appeals |
1. So much of the act of March 5, 1869, amendatory of acts establishing a Court of Criminal Correction in St. Louis County, as prescribes a punishment different from that prescribed by the general law is unconstitutional; and where a person is imprisoned by the St. Louis Court of Criminal Correction upon a conviction, under the general law, and is released on habeas corpus, by a judge of the Circuit Court, such release is void; and the prisoner may properly be taken in custody under the original commitment.
2. Where the unconstitutional portion of an act may be stricken out, and leave a complete enactment capable of being enforced, the whole will not be declared void because of the unconstitutionality of a part.
APPLICATION for writ of habeas corpus.
Prisoner remanded.
R. S McDonald, T. H. Peabody, and C. C. Simmons, for petitioner.
H B. Wilson, for respondent.
On January 22, 1877, William W. Jilz filed in this court a petition stating that, on August 12, 1876, he was tried and convicted in the St. Louis Court of Criminal Correction on a charge of criminal abortion, and sentenced by the judge of the court to imprisonment in the jail of St. Louis County for the term of one year, and to pay a fine of $500, and was thereupon committed to jail, and confined therein until August 22, 1876, on which day, the judge of the Criminal Court being then absent from the county, he applied to the Hon. James Lindley, one of the judges of the Circuit Court of St. Louis County, for a writ of habeas corpus, in obedience to which writ petitioner was brought before Judge Lindley, and discharged by him on the ground that the Court of Criminal Correction exceeded its power in sentencing the petitioner to confinement in the county jail for one year and that the commitment was, therefore, null and void, and the petitioner unlawfully restrained of his liberty.
The petitioner further states that, notwithstanding said discharge, the jailer of St. Louis County, on a reissue of the same commitment, again arrested the petitioner on September 29, 1876, and keeps him illegally confined in the jail. A copy of the commitment is attached to the petition.
The petitioner alleges that his imprisonment is illegal in this, that he is illegally confined under the same commitment and charge from which he was discharged by Judge Lindley as stated above, which discharge, he says, was legal; and in this, that the sentence of the Court of Criminal Correction is illegal and void, because that court, petitioner says, has no power to sentence for a longer term than six months, and has no power to sentence any convicted person to imprisonment in any other place than the city work-house.
In obedience to the writ of habeas corpus issued on this application, the jailer of St. Louis County produced the body of his prisoner, and made a return in which he admits that the petitioner was discharged from the authority of respondent by order of Judge Lindley, and says that the order of discharge was made in vacation of the Circuit Court, and that afterwards, on motion of the attorney representing the State, the Court of Criminal Correction recommitted the petitioner to the custody of respondent on the same conviction for criminal abortion on which he had been before committed; and that respondent holds petitioner under this last commitment, a copy of which is attached to the return.
The act of March 5, 1869, entitled " An act to amend an act approved March 23, 1868, entitled ‘ An act to amend an act to establish a Court of Criminal Correction in St. Louis County,’ approved March 15, 1866," gives to the Court of Criminal Correction jurisdiction of the offense of which petitioner was convicted, and provides (sec. 32) that " whenever the punishment of any misdemeanor is partly or wholly by imprisonment in the county jail, the party convicted in said court shall, instead of being sentenced to imprisonment in the county jail, be sentenced to...
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