Schwartz v. Dutro

• Decision Date: 17 October 1927
• Docket Number: No. 25951.,25951.
• Citation: Schwartz v. Dutro, 298 S.W. 769 (Mo. 1927)
• Parties: SCHWARTZ v. DUTRO, Sheriff.
• Court: Missouri Supreme Court

298 S.W. 769

SCHWARTZ v.DUTRO, Sheriff.

No. 25951.

Supreme Court of Missouri, Division No. 1.

October 17, 1927.

Proceeding in the Court of Appeals by Fred W. Schwartz for a writ of habeas corpus to C. D. Dutro, Sheriff of Cass County, Mo. Petitioner was ordered remanded to respondent's custody, and the proceeding was certified and transferred to the Supreme Court. Petitioner remanded to respondent's custody.

Charles A. Stratton, of Kansas City, for petitioner.

G. R. Chamberlin, of Harrisonville, for respondent.

ATWOOD, J.

This is a proceeding by habeas corpus commenced in the Kansas City Court of Appeals.The decision of the court directed that petitioner be remanded to the custody of the sheriff of Cass county, Mo. One of the judges sitting therein deeming this opinion and decision contrary to previous decisions of the Supreme Court, the proceeding accompanied by the original transcript therein was by said Court of Appeals of its own motion pending the same term certified and transferred to the Supreme Court under the provisions of section 6 of the Amendment of 1884 to article 6 of the Constitution of Missouri, where it must be determined as in case of jurisdiction obtained by ordinary appellate process.

From the petition and respondent's undisputed return to the writ issued thereon it appears that on April 20, 1922, petitioner, Fred W. Schwartz, was arrested on a warrant issued by a justice of the peace of Cass county, Mo., duly charging him with unlawfully and feloniously selling and disposing of mortgaged property without notice to, knowledge of, or the written consent of, the mortgagees or legal holders of the note and mortgage, all as fully set out in said warrant and in an affidavit previously filed before said justice of the peace.Petitioner was arrested under this warrant, and brought before said justice, where he waived preliminary hearing, and duly entered into the usual forth of recognizance for his appearance in the circuit court on the first day of next term thereof.Petitioner herein defaulted and failed to appear before said circuit court as provided in said recognizance, and, an information having been duly filed in said court by the prosecuting attorney of said county duly charging him with unlawfully and feloniously selling mortgaged property without notice to, knowledge of, or the written consent of, the mortgagees or the legal holders of said note and mortgage, which is made an offense by section 3348, R. S. 1919, and defendant having defaulted and failed to appear in said court to answer said charge, on December 8, 1922, his bond was forfeited, and the court ordered a capias to issue for his arrest.Under the warrant the sheriff of Cass county, respondent herein, made search for, but was unable to find, the defendant until on June 16, 1923, when, in obedience to said capias ordered by said circuit court, he arrested the said Fred W. Schwartz at Independence in Jackson county, Mo., while he was in attendance upon the circuit court of Jackson county, Mo., as a party to a divorce suit there pending in which he was defendant, he having come from the state of Kansas into the state of Missouri on said day in response to a citation issued to him as defendant therein; that the said Schwartz appeared solely for the purpose of testifying as a witness in said cause; that upon his arrest the said Schwartz sued out a writ of habeas corpus before the circuit court of Jackson county, at Independence, Mo., and the judge thereof, after hearing the evidence and examining the writ, denied the same, and delivered the said Fred W. Schwartz to the sheriff of Cass county, Mo., respondent herein, who thereupon, under the sanction and authority of the circuit court of Jackson county at Independence, Mo., had the custody of said Schwartz, and conveyed him to Harrisonville, Cass county, Mo.; that thereafter, on June 21, 1923, petitioner made application to the Kansas City Court of Appeals for writ of habeas corpus, at which time the said sheriff had the said Schwartz in his custody at Harrisonville in Cass county, Mo., and, in response to said writ, he made full return, and produced the body of the said Fred W. Schwartz before the court to be dealt with according to law.

The petitioner alleged under oath that his imprisonment was illegal because respondent was wholly without authority to arrest and detain him under and by virtue of said warrant, and that, being in attendance on the circuit court of Jackson county, at Independence, Mo., as defendant and witness in a cause there pending, he was immune from arrest.Petitioner subsequently filed an unverified "Motion for Discharge," setting up the following reasons:

"(1) Upon the return of the respondent herein, the arrest and detention of the petitioner was, and is, without authority or warrant of law.

"(2) Because the so-called capias warrant is void upon its face, the said arrest and detention of the petitioner was and is void.

"(3)The respondent was without authority of law to arrest the petitioner at the time and place of his alleged arrest, and his detention thereafter was unlawful and void."

We have not been favored with either argument or brief originally filed in this court by either party.The points urged by petitioner in his printed brief filed in the Court of Appeals are as follows:

"(1)The respondent was without authority to arrest the petitioner in the circuit court room at Independence, Mo., while petitioner was necessarily in attendance thereat, petitioner having come into the state of Missouri, from his place of residence in the state of Kansas, for said purpose, and no other.

"(2)The respondent was without authority to arrest the petitioner at the time and place of the latter's arrest, because said warrant authorized an arrest in Cass county, and not in Jackson county.

"(3) The so-called capias warrant, under which respondent arrested the petitioner, does not charge the crime, attempted to be charged by the information, nor any crime.

"(4) No indictment or information was filed or pending at the term of court to which petitioner's recognizance was returnable."

In support of his first point petitioner cites section 5429, R. S. Mo. 1919;United States v. Baird (D. C.)85 F. 633;Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 35;andIn re Healey, 53 Vt. 695, 38 Am. Rep. 713.Petitioner cites no Missouri statute providing that suitors shall be privileged from arrest.The section above cited only purports to extend the privilege to witnesses, and expressly excepts "treason, felony and breach of the peace" from its application.Petitioner stands charged with a felony, and, even regarded as a witness, he is not privileged under this statute.In United States v. Baird (D. C.)85 F. 633, a witness was brought by federal subpoena from the state of Pennsylvania into the state of New Jersey, there to testify before a United States commissioner in a criminal case, and he was held not subject to arrest on state criminal process in New Jersey.The case now before us can be easily distinguished.If, as petitioner claims, he was cited by a Missouri court while he was in Kansas, and a resident of that state, then his bodily appearance in the Missouri court was purely voluntary, and could not have been enforced.Furthermore, his arrest constituted no interference with the orderly processes of a federal court, or, for that matter, of the state court where he was in attendance, as appears from that court's prompt adverse ruling upon petitioner's first application for writ of habeas corpus.The cases of Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 35, andIn re Healey, 53 Vt. 695, 38 Am. Rep. 713, are also distinguishable from the case in hand by the fact that the privilege there allowed was freedom from service of civil process and not immunity from criminal arrest.This distinction is generally recognized, and is well stated in 2 R. C. L. 479, thus:

"Parties and witnesses attending in...