LaGore v. Ramsey, 36476.

• Citation: 126 S.W.2d 1153
• Decision Date: 04 April 1939
• Docket Number: No. 36476.,36476.
• Parties: LaGORE v. RAMSEY, Warden.
• Court: United States State Supreme Court of Missouri

126 S.W.2d 1153

LaGORE v. RAMSEY, Warden.

No. 36476.

Supreme Court of Missouri, in Banc.

April 4, 1939.

Habeas corpus proceeding by Donald LaGore opposed by J. Frank Ramsey, warden.

Judgment in accordance with opinion.

J. Arthur Francis, of Ironton, for petitioner.

Roy McKittrick, Atty. Gen., and Wm. Orr Sawyers and Russell C. Stone, Asst. Attys. Gen., for respondent.

CLARK, Judge.

Habeas Corpus. The facts are undisputed and show: that on April 20, 1937, petitioner was tried in the circuit court of Jackson County on an indictment charging him with assault with intent to rob; the jury returned a verdict finding him guilty as charged and assessing his punishment at fifteen years in the penitentiary; thereafter the court passed sentence that petitioner be confined in the penitentiary for fifteen years for robbery in the first degree; the warden of the penitentiary has filed return to our writ that petitioner is being lawfully held on the judgment, sentence and commitment of said circuit court; the petitioner answers that his restraint is unlawful and the judgment, sentence and commitment are void because he has never been indicted or tried on the charge set forth in them.

The judgment, sentence and commitment are void. State v. Duff, 253 Mo. 415, 161 S.W. 683 (conviction for burglary, sentence for larceny); State v. Goodwin, Mo.Sup., 217 S.W. 264 (conviction for a misdemeanor, sentence for a felony).

The question still remains as to whether petitioner is entitled to a complete discharge.

The power to issue the writ of habeas corpus is granted to this court by Section 3 of Article 6 of the Missouri Constitution, Mo.St.Ann. This is a high prerogative writ, but the Legislature may prescribe reasonable regulations for its issuance so long as its efficiency is not impaired. State v. Buckner, 291 Mo. 320, 234 S.W. 651, loc. cit. 652. From time to time the General Assembly have enacted laws on this subject which now constitute Article 6 of Chapter 7, Revised Statutes Missouri 1929, Sections 1426 to 1496, inclusive, Missouri Statutes Annotated, Vol. 2, §§ 1426-1496, pages 1632 to 1657, inclusive.

In support of his contention petitioner cites: Section 1496, supra; Ex parte Page, 49 Mo. 291; Ex parte Bugg, 163 Mo.App. 44, 145 S.W. 831; Ex parte Cornwall, 223 Mo. 259, 122 S.W. 666, 135 Am.St.Rep. 507; Ex parte Thornberry, 300 Mo. 661, 254 S.W. 1087; State v. Lewis, 273 Mo. 518, 201 S.W. 80. Section 1496 provides: "No person shall be entitled to the benefit of the provisions of this article for the reason that the judgment by virtue of which such person is confined was erroneous as to time or place of imprisonment; but in such cases it shall be the duty of the court or officer before whom such relief is sought to sentence such person to the proper place of confinement and for the correct length of time from and after the date of the original sentence, and to cause the officer or other person having such prisoner in charge to convey him forthwith to such designated place of imprisonment."

The above section was first enacted in 1877. Prior to that time, in 1872, Ex parte Page, supra, was decided. In that case defendant entered a plea of guilty to the charge of grand larceny and was sentenced to ten years. The maximum authorized by the statute was only seven years. On habeas corpus we held the sentence void, that we could neither amend it nor remand the cause to the trial court to do so, and discharged the prisoner. After the enactment of said statute, we have frequently held, under circumstances similar to those in the Page case, that we can amend an erroneous judgment or sentence as to time or place. Ex parte Bethurum, 66 Mo. 545; Ex parte Cohen, 159 Mo. 662, 60 S.W. 1031; State ex rel. v. Sevier, 336 Mo. 1236, 83 S.W.2d 581.

In Ex parte Bugg, supra, the Springfield Court of Appeals held that a stay of execution was invalid, but that, after a lapse of more than two years, it would be against sound public policy to again imprison the defendant for the misdemeanor for which he had been convicted.

In Ex parte Cornwall, supra, the defendant entered a plea of guilty and was given a jail sentence, the statute authorizing a fine only. Then the court granted a stay of execution on conditions. At a subsequent term the court set aside the stay and committed the defendant. Defendant applied for habeas corpus, whereupon the court entered an order setting aside the original jail sentence and assessing a fine. On petition of defendant for habeas corpus to this court we held that the trial court at a subsequent term was without power to change its judgment from a jail sentence to a fine and that such change could only be made as to time and place of sentence. In Ex parte Thornberry, 300 Mo. 661, 254 S.W. 1087, we held that an attempted re-sentence in the trial court was invalid, but that the original sentence was valid and the prisoner was not entitled to be discharged. We fail to see how the Thornberry case aids the petitioner in the case now before us except that in the Thornberry case we did approve, in part, the ruling in the Cornwall case. The facts in the Cornwall case differ materially from the facts in the present case and, whether or not our ruling was then correct, the Cornwall case can not help the present petitioner in view of our ruling in the later cases hereafter discussed.

The facts in State v. Lewis, supra, are entirely different from those in the present case and our ruling there does not in any way help the present petitioner, except that in the Lewis case, 273 Mo., at page 536, 201 S.W. at page 80, we again say that we have no power to correct the judgment below as to errors other than as to time and place. In support of that statement the Lewis case cites Ex parte Gauss, 223 Mo. 277, 122 S.W. 741, 135 Am. St.Rep. 517. No such question was considered in the Gauss case and the writer of the Lewi...