In re Mitchell

• Decision Date: 23 April 1891
• Citation: 104 Mo. 121,16 S.W. 118
• Parties: In re MITCHELL.
• Court: Missouri Supreme Court

16 S.W. 118

104 Mo. 121

In re MITCHELL.

Supreme Court of Missouri, Division No. 2.

April 23, 1891.

HABEAS CORPUS — WHEN LIES — FINAL JUDGMENT.

Under Rev. St. Mo. 1889, § 5376, providing that a prisoner brought upon habeas corpus shall be remanded, if it appears that he is detained by virtue of the final judgment of any competent court of civil or criminal jurisdiction, a prisoner sentenced by the circuit court for selling liquor contrary to the local option law will not be released on habeas corpus, on the ground that the county in which the offense was committed never legally adopted the law, as that was a matter determinable by the trial court, and reviewable by appeal.

Application for habeas corpus.

Geo. M. Harrison, for petitioner. Atty. Gen. Wood, for respondent.

GANTT, P. J.

This is an application by the petitioner, Christian Mitchell, for release, on a writ of habeas corpus, from the common jail of Marion county. He avers that he is illegally restrained by the sheriff of said county, in this: That in November, 1889, he was indicted by a grand jury of said county for selling intoxicating liquors therein contrary to the provisions of what is known as the "Local Option Law" of Missouri; and that on the 11th day of November, 1890, he was tried in the circuit court of said county, and found guilty thereof, and his punishment fixed and assessed at a fine of $600, and a judgment for that amount was rendered against petitioner; and it was further adjudged that, if petitioner did not pay said fine, he should be committed to the common jail of said county until it was paid together with the costs. He further alleges that he did not pay said fine, and, by reason of his default, a capias execution was issued, by the clerk of the circuit court of said county, on 22d day of December, 1890, to the sheriff of said county, who by authority thereof arrested petitioner, and has ever since confined him in said county jail. The illegality complained of is that said local option law had not been adopted in said county, and therefore his imprisonment for violation thereof was illegal. The return to the writ shows a capias execution in due form, and that the officer is holding defendant to satisfy the same, in accordance with the judgment and sentence of the circuit court of Marion county. By section 5376 of the Revised Statutes of Missouri (1889) it is made the duty of the court before whom a prisoner is brought on writ of habeas corpus to forthwith remand...