In re Vickers

• Decision Date: 05 March 1907
• Parties: In re VICKERS.
• Court: Missouri Supreme Court

100 S.W. 585

201 Mo. 643

In re VICKERS.

Supreme Court of Missouri. Division No. 2.

March 5, 1907.

CRIMINAL LAW — APPEAL — SUPERSEDEAS — CAPITAL CASE.

Rev. St. 1899, § 1837 [Ann. St. 1906, p. 1271], provides that rape shall be punishable by death or imprisonment in the penitentiary for a term of years, and section 2698 [Ann. St. 1906, p. 1590] declares that in capital cases the order granting an appeal shall operate as a stay absolutely. Held, that where petitioner was convicted of rape, but was sentenced to the penitentiary for a term of 50 years, his case was not a "capital case," and his imprisonment under the sentence was therefore not suspended by an order granting an appeal.

Habeas corpus on petition of James W. Vickers for a supersedeas pending appeal. Petitioner remanded.

E. Silver, for petitioner. The Attorney General and N. T. Gentry, for respondent.

GANTT, J.

The petitioner, charged and convicted of rape in the circuit court of Lewis county and sentenced to the penitentiary for 50 years, was by court permitted bail pending his appeal, but, being either unable of unwilling to give bail for supersedeas, moved the circuit court to supersede the judgment pending his appeal and permit him to remain in jail in Lewis county, which request the circuit court denied.

He has filed his petition in this court for a writ of habeas corpus, and seeks hereby to obtain an order remanding him to the Lewis county jail until his appeal is determined. He does not ask to be bailed. His contention is that by virtue of section 2698, Rev. St. 1899 [Ann. St. 1906, p. 1590], his appeal from the circuit court operated as a stay pending his appeal, and the circuit court had no discretion to deny him the supersedeas, and therefore he is entitled to an order returning him to the Lewis county jail. The insistence of the petitioner is based upon the proposition that rape under our statute (section 1837, Rev. St. 1899 [Ann. St. 1906, p. 1271]) is a capital offense, and by section 2698, Rev. St. 1899, it is provided that, "in capital cases, the order granting the appeal shall operate as such stay absolutely." In other felonies it is provided that an appeal or writ of error shall not stay or delay execution of the judgment or sentence unless the Supreme Court or the court in which the judgment is rendered, on inspection of the record, shall be of opinion there is probable cause for such an appeal or writ of error, and shall make an order directing the appeal or writ of...