In re Mitts

• Decision Date: 18 January 1926
• Citation: 278 S.W. 1047,220 Mo.App. 825
• Parties: IN RE ORA MITTS
• Court: Kansas Court of Appeals

278 S.W. 1047

220 Mo.App. 825

IN RE ORA MITTS

Court of Appeals of Missouri, Kansas City

January 18, 1926

PETITIONER REMANDED TO CUSTODY OF SHERIFF.

G. R Chamberlin, Prosecuting Attorney for State, no brief.

Elmer E. Hairgrove, Attorney for petitioner, no brief.

BLAND J. Arnold, J., concurs; Trimble, P. J., absent.

OPINION

Original Proceeding "By the Habeas Corpus Act."

BLAND J.--

This is a proceeding in habeas corpus. The facts show that on September 8, 1925, the prosecuting attorney of Cass county filed an information charging defendant with transporting and giving away "hootch moonshine for beverage purposes," and with having in his "possession certain intoxicating liquors, to-wit, about four pints, more or less, of hootch moonshine, commonly called 'Home Brew' and containing more than one-half of one per cent per volume of alcohol." Afterwards the charge of transporting and giving away was dismissed. The records of the circuit court of Cass county show that on September 29, 1925, defendant appeared in that court and pleaded not guilty; that both the State and defendant requested a trial by the court without a jury; that a part of the evidence was submitted and the case was continued until October 8, 1925. On October 8, additional evidence was heard and the case closed, and the court continued the case until October 26. The cause was thereafter continued until October 31st. The regular records of the circuit court of Cass county show no judgment or sentence of the defendant, but the minutes upon the judge's docket contain the following:

"Sept. 29,--Dft. appears personally with father and friends, hears reading of information and pleads not guilty. Pros. Atty. dismisses as to 1st count charging transportation. Both parties request trial by court without jury. Ct. notifies parties it will hear cause, on condition that it will continue hearing to any future date necessary to get other material evidence. Parties agree to each condition. Part of evidence submitted. Con. to Oct. 8 for more evidence. Oct. 8, State submits further evidence. Both sides close. Ct. continues cause to Oct. 26th. Oct. 26th, Ct. con. cause to Oct. 28. Oct. 28, Ct. con. cause to Oct. 31. Oct. 31, Dft. appears personally. Ct. finds deft. guilty. Ct. sentences him to eight months in jail and to pay a fine of $ 100."

The clerk failed to enter the judgment and sentence of the court and no commitment was issued. The sheriff of the county confined the defendant in the county jail. The failure to enter the judgment and to make out the commitment on the part of the clerk seems to have been an oversight, as well as the imprisonment of the petitioner in the absence of the commitment.

On December 23, 1925, the petitioner filed in this court this application for a writ of habeas corpus, alleging that the respondent, the sheriff of Cass county, and ex officio jailer of that county, was holding the petitioner unlawfully. The amended return of the sheriff filed on January 11, 1926, does not seek to justify the imprisonment of the petitioner prior to the 6th day of January, 1926. But on that day, upon a motion being filed by the prosecuting attorney, the circuit court made an entry nunc pro tunc. The finding and the entry of the court read as follows:

"The court finds that counsel was notified by the prosecuting attorney the day before yesterday that this motion would be filed, and notified by the court that it would be taken up on this day to which day also was continued the hearing of motion for new trial in the other case against defendant, No. 20209.

"The court further finds that the writ of habeas corpus as issued to the sheriff in this cause is necessarily based upon entries and records heretofore made in this cause, and that this motion for judgment nunc pro tunc has no connection with nor in any way interferes with said writ of habeas corpus or hearing thereon.

"The court finds that this defendant personally appeared before this court and was actually sentenced as it appears by the records in the judge's docket October 31, 1925, but that entry of such sentence was omitted by clerk in the formal record of this court. The court finds that it is his duty, under the statute, to see that the records of the court are properly kept and that it is his duty under the law to see that the actual sentence imposed by the court is recorded in the formal record books of the court. The court finds that this duty in no way conflicts with the question raised by habeas corpus in the Court of Appeals. The court therefore sustains the motion of judgment nunc pro tunc and now orders and directs the clerk to enter the following judgment in this cause:

"October 31, 1925, Defendant appears in open court and the court finds defendant guilty of possessing intoxicating liquor as charged in the information. It is therefore considered and adjudged by the court that defendant be imprisoned in the county jail of this county for a period of eight months and pay a fine of one hundred dollars, and costs of this prosecution taxed at $ 28.75 and that he stand committed until the said fine and costs be paid and jail sentence be served, or be otherwise discharged according to law."

. . . .

"Court finds as per written order herein filed and sustains motion for judgment nunc pro tunc as prayed. Sheriff is directed to take defendant under such judgment and sentence upon commitment which clerk is now directed to issue. Court informs sheriff that these proceedings in no way conflict or set aside any writ from Court of Appeals or any judge thereof, and that he should comply with such writ by having defendant before said Court of Appeals on day directed by said court."

Upon the entry nunc pro tunc a commitment was issued and the sheriff justifies his holding of the prisoner by virtue of this commitment and also by virtue of another commitment in another case issued on the 6th day of January, 1926, by the circuit court of Harrison county, upon a judgment and sentence adjudging defendant guilty of making corn whiskey and sentencing him to two years in the penitentiary.

Of course, defendant being in the custody of the sheriff under this last-mentioned commitment, would not be entitled to his discharge from custody of respondent in any event, but assuming that he has the right to this proceeding to have the legality of his detention under the former charge inquired into, we take up the points relied upon by the petitioner in reference to this detention under the charge of possessing intoxicating liquor. At the outset, it may be admitted that there was no authority for the imprisonment of the petitioner at the time the writ of habeas corpus was issued, but this does not justify this court in discharging him if the amended return shows there was sufficient ground for his detention. [In re Dye, 32 Mont. 132; Stanfeal v. The State, 78 Ohio St. 24.]

The petitioner insists that there had never been a valid judgment and sentence and, therefore, the court had no right to make the nunc pro tunc entry and could not enter a judgment attempting to meet the situation after the writ of habeas corpus was issued. If there was no judgment entry on October 31st, then, unquestionably, the petitioner's claim is well taken. [Ex parte Cornwall, 223 Mo. 259, 272.] But we think there is no doubt but that the minutes by the judge on October 31st, show that a judgment was entered in this cause.

". . . the rendition of the judgment is the judicial act upon which the execution rests, its entry upon the record is a mere ministerial act evidencing the judicial act, but not essential to its validity, or giving to the judgment any additional force or efficacy. A valid judgment rendered will support and validate an execution issued in conformity therewith, although the formal record evidence of its...