Osborne v. Owsley

• Decision Date: 17 April 1953
• Docket Number: No. 21930,21930
• Citation: 257 S.W.2d 691
• Parties: OSBORNE v. OWSLEY, Sheriff of Jackson County.
• Court: Missouri Court of Appeals

Page 691

257 S.W.2d 691

OSBORNE v. OWSLEY, Sheriff of Jackson County.

No. 21930.

Kansas City Court of Appeals, Missouri.

April 17, 1953.

Alfred H. Osborne, Kansas City, for petitioner.

Richard K. Phelps and W. Prewitt Ewing, Kansas City, for respondent.

CAVE, Presiding Judge.

The petitioner, Alfred H. Osborne, by this proceeding in habeas corpus, seeks to be released from custody and finally discharged upon an indictment, No. C-24633, for subornation of perjury pending in the criminal court of Jackson County, Missouri.

Our writ issued and respondent filed a return, and thereafter filed an amended return, to which petitioner filed answer and respondent filed a reply to the answer.

The basis of petitioner's contention, according to his pleadings, is that he is entitled to be released from custody and finally discharged upon said indictment because he has not been brought to trial on that indictment within four terms of court, as required by Sections 545.900, 545.910, and 545.920, RSMo 1949, V.A.M.S. He alleges that the charge made against him has been continued for four consecutive terms, without just cause or excuse; without his consent to such continuances, and that at each term he demanded a trial, or that the case be transferred to another division of the court where a trial could he had.

There are other allegations in petitioner's pleadings, which will be referred to hereinafter.

The pertinent part of the sheriff's return alleged that petitioner was not entitled to release and discharge on said indictment under the record entries made in said cause by the court. A certified copy of such entries was made a part of the return.

From the pleadings, the following facts and record entries are conceded: (All italics ours, unless otherwise indicated.) The indictment against petitioner was returned on November 9, 1951, which was the last day of the September term of the court; a capias was issued and petitioner was arrested and appeared in court on November 13, 1951 (November term); was arraigned and entered a plea of not guilty and released on bail, and the court made the following order: 'Whereupon the court orders that the trial of this cause be continued for the term * * *.' At the next term, January, 1952, the court ordered the 'case continued for the term * * * on account of the docket being congested and lack of time.' At the March term the court ordered that 'on account of lack of time and congested docket, it is ordered by the court that the case be continued for the term and set for trial on the first day of the next term.' At the next term (May) the court ordered that the case be 'continued for the term and set for trial on the first day of the next regular term of this court, the same being the 8th day of September, 1952.' At the September term, this entry was made: 'Now on this day, (Oct. 27) on account of congested docket and lack of time, the court of its own motion orders that the above numbered and entitled cause be and the same is hereby continued for the term and set for trial on the first day of the next regular term, the same being the 10th of November, 1952.'

The record of the September term further shows that on the first day of that term the petitioner filed a motion to quash the indictment and also filed a motion to be discharged under said indictment because he had not been brought to trial within four consecutive terms. On September 19 both motions were withdrawn and the cause set for trial on the 20th of October. On the 18th of October petitioner refiled his motion to quash indictment and for discharge. On October 27 the two motions and the case were continued to the next term, as indicted supra.

At the November term the court heard evidence on petitioner's motion for discharge and everruled the same, and also overruled the motion to quash the indictment and set the case for trial on the 5th of January, 1953 (November term, 1952); whereupon defendant filed a petition for a change of venue, because of prejudice of the judge, and the cause was transferred to the Independence Division of the Circuit Court of Jackson where the cause was pending at the time petitioner filed his petition for Writ of Habeas Corpus in this court on January 26, 1953.

By his petition and answer, petitioner challenges the truth of the record entries of continuances made by the court at the various terms, as set out above, and alleges that he was demanding a trial at each term; that the records of each division of the Circuit Court of Jackson County show that there was ample time to try his case; that other criminal cases filed subsequent to the time the indictment was returned against him were tried by various divisions of the court; that the court acted arbitrarily and capriciously in continuing the indictment against him; and that the court overruled his motion for discharge because of false, fraudulent and perjured testimony. In other words, he seeks to attack collaterally the record entries of the court by alleging and proving facts de hors the record which are inconsistent with the recitals in the orders.

The petition in this case consists of 13 typewritten pages, together with certain exhibits attached thereto, and the answer contains 46 pages, but, under our view of this proceeding, it is unnecessary to set out in greater detail the allegations of the petition, amended return, answer and reply. We say this because it is our conclusion that habeas corpus is not the proper procedure, under the record, to present the issue of petitioner's right to discharge. If he is ordered discharged in this proceeding such discharge 'is equivalent to a verdict of acquittal with judgment thereon.' It is not a mere release from custody of the sheriff. State v. Wear, 145 Mo. 162, 187, 46 S.W. 1099.

In considering what is said hereinafter, it must be kept in mind that we are not confronted with the question whether habeas corpus will lie to test the jurisdiction of a court under Section 532.430. There can be no doubt that if an indictment upon its face is a nullity, or if the court patently exceeds its jurisdiction, such question can be raised by habeas corpus. Fernbaugh v. Clark, 236 Mo.App. 1200, 163 S.W.2d 999; Griggs v. Venerable Sister Mary Help of Christians, Mo.App., 238 S.W.2d 8. But the right to discharge because of failure to grant a speedy trial is not a jurisdictional question; it is a privilege which may be waived, and is waived, if not asserted in the proper manner and at the proper time. Levine v. U. S., 8 Cir., 182 F.2d 556, 558; certiorari denied, 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665. See, also, State v. Hicks, 353 Mo. 950, 185 S.W.2d 650; State ex rel. Billings v. Rudolph, 322 Mo. 1163, 17 S.W.2d 932. Thus the right of a party to be discharged for failure to grant him a speedy trial is in the nature of an interlocutory matter, which must be raised before trial and, if not, the right is waived; it is a matter for judicial determination, after a hearing upon the merits. The right to discharge, under the statutes hereinafter referred to, is not mandatory and automatic upon expiration of the specified number of terms of court, but is dependent upon a finding of laches on the part of the state. This principle runs through all the Missouri cases. See State v. Huting, 21 Mo. 464; State v. Marshall, 115 Mo. 383, 22 S.W 452; State v. Nelson, Mo.Sup., 279 S.W. 401; State v. Woods, 346 Mo. 538, 142 S.W.2d 87, and State v. Haines, 160 Mo. 555, 61 S.W. 621.

With these general principles in mind, we examine the record and the applicable statutes.

Section 545.900 provides that 'If any person indicted for any offense, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happened on his application. or be occasioned by the want of time to try such cause at such third term.' Petitioner was admitted to bail in the case and this section is applicable. However, section 545.920 provides: 'In all cities or counties in this state in which there shall be more than two regular terms of the court having jurisdiction of criminal cases, the defendant shall not be entitled to be discharged for the reasons and under the circumstances mentioned in section * * * 545.900, * * * until the end of the fourth term after the indictment was found, * * *.' There are more than two regular terms of the Circuit Court of Jackson County having jurisdiction of criminal cases and, therefore, this section governs the number of terms which must elapse before the petitioner is entitled to his discharge. In other words, he is not entitled to be discharged until the end of the fourth term after the indictment was found and is not entitled to be discharged at the time if 'the delay happened on his application, or be occasioned by the want of time to try such cause at such third [fourth] term.'

The term at which the indictment was returned is not to be considered under the statute; therefore, the first term to be counted is the November term, 1951, at which time the court entered a general order of continuance as quoted, supra; at the January and March terms, 1952, the court ordered the case continued 'on account of the docket being congested and lack of time'; at the following May term the court entered a general order of continuance; and at the following September term the cause was continued 'on account of congested docket and lack of time, the court of its own motion ordered * * *' that the cause be continued to the next term. The pleadings also concede that at said September term the petitioner filed a motion to quash the indictment and to be discharged because he had not been brought to trial within the time prescribed by the statutes, supra; that both motions were withdrawn and the cause set for trial on the...