In re Petition of V.G. Mcdonald

• Decision Date: 17 November 1885
• Citation: 19 Mo.App. 370
• Parties: IN THE MATTER OF THE PETITION OF V. G. MCDONALD, FOR A WRIT of HABEAS CORPUS.
• Court: Missouri Court of Appeals

19 Mo.App. 370

IN THE MATTER OF THE PETITION OF V. G. MCDONALD, FOR A WRIT of HABEAS CORPUS.

Kansas City Court of Appeals, Missouri.

Nov. 17, 1885.

Discharge ordered.

PHILIPS, P. J.

The petitioner, W. G. McDonald, stands indicted by the grand jury of Caldwell county as principal in the second degree for the murder of one John Gray.

The indictment states that the offence was committed in the county of Ray, but within five hundred yards of the county line separating the counties of Caldwell and Ray. Under this indictment petitioner was arrested and is confined in the jail of Caldwell county in the custody of the sheriff, the respondent herein. The prisoner petitions this court for the writ of habeas corpus, asking to be discharged from said imprisonment and custody on the ground of the alleged illegality of his restraint and detention. The facts, as disclosed at this hearing, are briefly as follows: The offence in question was committed in the county of Ray, but within five hundred yards of the county line bordering on Caldwell county. The petitioner and his son are charged with the killing of said Gray. Information was lodged with a justice of the peace of Ray county, charging petitioner and said son with said offence. Under this proceeding the parties were recognized for their appearance before the circuit court of Ray county to abide the action of the grand jury of said county. The grand jury returned “a true bill” against the son for murder in the first degree, and returned “not a true bill” as to the petitioner, and he was accordingly discharged.

Subsequently thereto, the grand jury of Caldwell county found a true bill of indictment against the son for this same offence, charging him as principal in the first degree, and also against the petitioner charging him as principal in the second degree. The son was then in jail in Ray county under the indictment found against him there. The authority for the indictment under which the petitioner is held is section 1697, Revised Statutes, which reads as follows: “When an offence shall be committed on the boundary of two counties, or within five hundred yards of such boundary, etc., * * * an examination thereof may be made, and a trial and conviction thereon had, in either of such counties.”

The claim of the petitioner is, that the five hundred yards provision of said section is unconstitutional, and, therefore, his detention by the sheriff of Caldwell county is illegal.

I. We are met at the threshhold of this inquiry by the objection of the state that this court has no jurisdiction to determine a constitutional question. By section four of the act (Laws Mo. 1883, 214), providing for the amendment to the state constitution creating this court, the same jurisdiction, as to the subject matter, is conferred on it as on the St. Louis court of appeals. Section twelve, article six, of state constitution confers original jurisdiction on the St. Louis court of appeals over all remedial writs, including the writ of habeas corpus, “and to hear and determine the same.” Appellate jurisdiction was by the same section conferred on the supreme court over certain subjects cognizable by the court of appeals. Among which are cases involving the construction of the federal and state constitutions. But now, by section five of said act, amendatory of the constitution creating this court, all cases, heretofore reviewable by the supreme court from the court of appeals, go directly from the circuit court to the supreme court, and not through the courts of appeals. But under both the constitution and the amendment the restriction of our jurisdiction as to constitutional questions applies solely to the instance of the appellate jurisdiction of the court. It has no application to the case of a writ of habeas corpus. The jurisdiction of this court by virtue of the constitution is original. There never was any appeal to the supreme court on judgments rendered on petition for this writ. Over this subject matter our jurisdiction is co-equal with that of the supreme court, and our judgment just as conclusive.

In Ex parte Jiltz (64 Mo. 205), it is held that when a judge of any court acquires jurisdiction over the person and subject matter under the petition for the writ of habeas corpus, the order of discharge, whether right or erroneous, being in favor of personal liberty, is conclusive. The court say: “the judge of the circuit court, having acquired jurisdiction of the person and subject matter, was authorized and required to determine the question as to the legality of the imprisonment, and whether he decided erroneously or not, is immaterial, the discharge of the prisoner being in favor of personal liberty, is final and conclusive. In proceedings by habeas corpus, this court only exercises original jurisdiction, and in issuing the writ and determining the questions arising under it, possesses no more power than is possessed by a circuit court or county court, or any judge or officer authorized by law to issue the writ, etc.”

The very object of the writ in a case like this being to inquire into the cause and legality of the restraint, it must follow as an inevitable corrollary of jurisdiction that the officer or court issuing it must investigate and determine every question going to the constitution of the legality of the process by which the petitioner is detained. So extreme is the solicitude of the law, and so jealous of the liberty of the citizen are our constitution and statute, that it is made the imperative duty of the judge and court to hear his petition. And it has ever been recognized as among the unquestioned powers of the court or judge granting the writ to pass upon, primarily, the question as to whether the court or officer, issuing the process under which the prisoner is detained, had jurisdiction, and has acted within that jurisdiction. Cooley Const. Lim. 425.

However much, therefore, we may personally desire to escape the annoyance and responsibility of entertaining these applications, which ordinarily should be addressed to the local tribunals, and of determining the many delicate and intricate questions raised by them, we must obey the mandate of the constitution and statute.

II. It appearing from the face of the indictment that the offence with which the prisoner stands charged was committed in Ray county and the bill found by the grand jury of Caldwell county, and the authority for this exercise of jurisdiction by the grand inquest of the latter county being justified under the authority of said section 1697, we must determine the validity or invalidity of this legislative act.

The bill of rights, section twelve, article two, of the present state constitution, declares: “That no person shall, for felony, be proceeded against criminally otherwise than by indictment, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger.”

As this fundamental law positively interdicts any other method of final procedure in case of felony than by indictment, the important question occurs: What is an indictment, by whom and how is it found? This question has been met and fully answered by the supreme court in Ex parte Slater (72 Mo. 102). The term “indictment,” as employed in the constitution, is held to mean its common law acceptation. That meaning is well defined and understood. Without reviewing the authorities, or re-stating the reasoning, it is enough to say that the common law authorities, from Bacon's Abridgement to our latest text writers, define such indictment to be: “an accusation at the suit of the king (or state) by the oaths of twelve men * * * of the same county wherein the offence was committed, returned to inquire of all offences in general in the county, determinable by the court in which they are returned, and finding a bill brought before them to be true.” And, therefore, by the common law the grand jury cannot regularly indict or present any offence which does not arise within the county or...