Jackson v. Kaiser

• Decision Date: 09 February 1945
• Docket Number: No. 39352.,39352.
• Citation: 185 S.W.2d 784
• Parties: ANDREW JACKSON, Petitioner, v. PAUL E. KAISER, Warden.
• Court: Missouri Supreme Court

185 S.W.2d 784

ANDREW JACKSON, Petitioner, v. PAUL E. KAISER, Warden.

No. 39352.

Supreme Court of Missouri.

Court en Banc, February 9, 1945.

Habeas Corpus.

PETITIONER REMANDED TO CUSTODY.

Ivan H. Light for petitioner.

(1) On November 12, 1941, the United States had custody of petitioner. No state court could compel the production of him before it. It could merely request it. The United States had the right to hold petitioner to answer its charges and then, if he should be convicted and sentenced, to hold him until all its claims upon him were fully satisfied. Taylor v. Taintor, 83 U.S. 366, 21 L. Ed. 287; Ponzi v. Fessenden, 258 U.S. 254, 66 L. Ed. 607; State v. Saunders, 288 Mo. 640, 232 S.W. 973. (2) When the United States Marshal obeyed the writ of habeas corpus ad prosequendum issued by the state court by producing petitioner's body before it, but without filing any written return to the writ reserving claims of the United States, the state court acquired full and exclusive jurisdiction, custody and control of petitioner. Upon the return of the writ of habeas corpus, the custody of the prisoner pendente lite is exclusively in the court issuing the writ. Barth v. Clise, Sheriff, 12 Wall. 401, 20 L. Ed. 393; In re Kaine, 14 How. 103, 14 L. Ed. 347; Matson v. Swanson, 131 Ill. 255; In re Grant, 23 Wash. 412, 67 Pac. 73; Church: Habeas Corpus, secs. 175-176; 39 C.J.S., p. 659. (3) Petitioner's Missouri sentence began to run on the day of sentence. It was interrupted and waived when the state authorities surrendered him to the United States Marshal. The state waived its claims, and petitioner cannot be compelled to serve his state sentence in installments. Albori v. United States, 67 Fed. (2d) 4; White, Warden, v. Pearlman, 42 Fed. (2d) 788; Smith v. Swope, 91 Fed. (2d) 260; In re Jennings, 118 Fed. 479; Jones v. Morrow, 154 Kan. 588, 121 Pac. (2d) 219; People v. Bartley, 383 Ill. 437, 50 N.E. (2d) 517.

J.E. Taylor, Attorney General, and B. Richards Creech, Assistant Attorney General, for respondent.

(1) The United States Marshal chose to honor Missouri Court's "writ of habeas corpus ad prosequendum." The state court only acquired such control and jurisdiction as is afforded by such writ. Ponzi v. Fessenden, 258 U.S. 254, 22 A.L.R. 879; Cato v. Smith, 104 Fed. (2d) 885; Rigor v. State, 101 Mo. 465, 61 Atl. 631, 4 Ann. Cas. 719; State v. Conway, 171 S.W. (2d) 677; Lunsford v. Hudspeth, 126 Fed. (2d) 653; Zerbst v. McPike, 97 Fed. (2d) 253. (2) The Federal authorities did not waive their jurisdiction over the petitioner, and only allowed the State court to exercise such authority as the writ of habeas corpus ad prosequedum afforded under the law. Lunsford v. Hudspeth, 126 Fed. (2d) 653; Smith v. Swope, 91 Fed. (2d) 260; Eyler v. Aderhold, 73 Fed. (2d) 372; United States ex rel. Moore v. Traeger, 44 Fed. (2d) 312; State ex rel. Billings v. Rudolph, 17 S.W. (2d) 932; Jackson v. United States, 131 Fed. (2d) 606. (3) The petitioner's Missouri sentence began to run after petitioner had served his federal sentence, or started on the 16th day of February, 1944. United States ex rel. Moore v. Traeger, 44 Fed. (2d) 313; Howell v. Hiatt, 55 Fed. Supp. 142; State ex rel. Billings v. Rudolph, 17 S.W. (2d) 932; Sec. 4106, R.S. 1939.

TIPTON, J.

Habeas Corpus: On September 6, 1939, a complaint was filed in the St. Louis Court of Criminal Correction against petitioner, charging him with the crime of robbery. In January, 1941, the petitioner was taken into custody in New York by the United States under a Federal charge of having fled from Missouri to avoid prosecution for this same robbery. A Federal indictment charging a violation of Title 18, U.S. Code, Section 408E (Fugitive Felon Act) was later filed in the United States District Court for the Eastern District of Missouri. An information, charging the petitioner with robbery in the first degree, was filed in the Circuit Court of the City of St. Louis on June 19, 1941. From the time of the petitioner's arrest, he was in the custody of the United States Marshal for the Eastern District of Missouri, who lodged petitioner in the City Jail at St. Louis.

On November 12, 1941, a petition for a writ of habeas corpus ad prosequendum was filed in the Circuit Court of the City of St. Louis, and the writ of habeas corpus ad prosequendum was issued commanding William B. Fahy, United States Marshal of the Eastern District of Missouri, to bring the body of the petitioner on November 13, 1941, at 10:00 A.M., and from day to day, before Division 10 of the Circuit Court of the City of St. Louis, so that the petitioner could answer to the charge of robbery in the first degree. William B. Fahy made no return to the writ of habeas corpus ad prosequendum, but did, by a Deputy United States Marshal, produce the body of petitioner in Division 10 of the Circuit Court of St. Louis on November 13, 1941, as directed by the writ of habeas corpus ad prosequendum, and from day to day until the trial was completed on November 14, 1941. On December 5, 1941, the petitioner was brought before the Circuit Court, and, thereupon, the petitioner was sentenced to imprisonment in the State penitentiary for a period of five years.

On the next day, the petitioner was brought into the District Court of the United States by the United States Marshal, and petitioner pleaded guilty to the indictment pending against him in that court. He was sentenced to three years' imprisonment and was imprisoned in the Federal prison at Leavenworth, Kansas, to serve that sentence which expired in February, 1944. On February 16, 1944, the Sheriff of St. Louis delivered the body of the petitioner to the keeper of the Missouri penitentiary to serve the sentence imposed on petitioner by the Circuit Court of St. Louis.

Respondent's return to our writ states that he is holding petitioner under a commitment issued pursuant to the judgment and sentence of December 5, 1941, of the Circuit Court of St. Louis, and that he received petitioner on February 16, 1944. Other pertinent facts will be stated in the course of the opinion.

[1] The petitioner contends that "When the United States Marshal chose to honor the Missouri Circuit Court's writ of habeas corpus ad prosequendum, the State Court acquired full and exclusive jurisdiction, custody and control of petitioner." He bases this contention upon the fact that the United States Court had prior claim and waived this claim when the United States Marshal produced him in the Circuit Court without making any return to the writ of habeas corpus ad prosequendum. He admits that the United States Marshal could make a return to the writ reserving the prior claim of the United States to hold him for trial in the District Court.

"The chief rule which preserves our two systems of courts from the actual conflict of jurisdiction is that the court which first takes the subject-matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purpose." Ponzi v. Fessenden, 258 U.S. 254, l.c. 260. See Cato v. Smith, 104 F. 2d 885; Zerbst v. McPike, 97 F. 2d 253.

"As an easy and flexible means of administering justice and of affording each sovereignty the right and opportunity to exhaust its remedy for wrongs committed against it, there has evolved the now well established rule of comity which is reciprocal, whereby one sovereignty having exclusive jurisdiction of a person may temporarily waive its right to the exclusive jurisdiction of such person for purposes of trial in the courts of another sovereignty. Thus the offender is accorded a speedy trial and the administration of justice is expedited by the availability of evidence, which might through lapse of time be lost, but such a waiver is a matter addressed solely to the discretion of the sovereignty, or its representatives having power to grant it. Ponzi v. Fessenden, supra, and Ex parte Aubert, D.C., 51 F. 2d 136. The privileges granted by this flexible rule of comity should and must be respected by the sovereignty to which it is made available, and this respectful duty is reciprocal, whether federal or state, because neither sovereignty has the power to override it. Under the free exercise of this rule, no right or immunity granted by the constitution, laws, or treaties of the United States, is invaded or impaired." Lunsford v. Hudspeth, 126 F. 2d 653, l.c. 655.

But under the facts as disclosed by this record, the Circuit Court did not "acquire full and exclusive jurisdiction, custody and control of the petitioner." The Federal Government could "lend" the prisoner to the State in order to afford him a speedy trial and to convenience the witnesses who might be necessary to be assembled for or against him. This can be done without a complete surrender of the prior jurisdiction over him which the Federal Government in this case has acquired. Zerbst v. McPike, supra.

[2] Petitioner admits this could have been done by a proper return made by the United States Marshal to the writ of habeas corpus ad prosequendum, but he does contend that since there was no return made, the Marshal did make a complete surrender of the Federal Government's claim to his custody.

We think that under the terms of the writ of habeas corpus ad prosequendum, no return was necessary when the Marshal saw fit to honor the writ. The writ reads: "We command you, That you do, on...