State ex rel. Attorney-General v. Skinker

• Decision Date: 04 March 1930
• Docket Number: No. 29919.,29919.
• Citation: 25 S.W.2d 472
• Parties: THE STATE EX REL. STRATTON SHARTEL, Attorney-General, v. C.H. SKINKER, Judge of Circuit Court of Webster County.
• Court: Missouri Supreme Court

25 S.W.2d 472

THE STATE EX REL. STRATTON SHARTEL, Attorney-General, v.C.H. SKINKER, Judge of Circuit Court of Webster County.

No. 29919.

Supreme Court of Missouri, Court en Banc.

March 4, 1930.

Certiorari,

WRIT QUASHED.

Stratton Shartel,Attorney-General, and Walter E. Sloat, Special Assistant Attorney-General, for relator.

(1) Certiorari is the proper remedy in a case of habeas corpus to review the findings of the trial court.Art. VI, Sec. 3, Mo. Constitution;State ex rel. v. Wurdeman, 254 Mo. 561;State ex rel. Gentry v. Westhues, 286 S.W. 396;State ex rel. Shartel v. Westhues, 9 S.W. (2d) 612.(2)The Circuit Court of Webster County had no jurisdiction whatever to order the absolute discharge of McBride.State ex rel. Gentry v. Westhues, 286 S.W. 399.Neither did the court have jurisdiction over the Warden of the State Penitentiary, the officer, who according to law, had actual custody of the prisoner.(a)This court has held that a prisoner's time does not run against his sentence when he is released on a parole by the Governor.It can certainly not be argued that his time would run when he had escaped from custody.Jacobs v. Crawford, 272 S.W. 931.(b) A sentence can only be satisfied by compliance with its terms except by statutory provision, and neither the honest mistake nor the willful disregard of duty on the part of the officers whose duty it is to enforce the judgment, can release the convicted party from its consequence.Ex parte Bugg(Mo. App.), 145 S.W. 832.(c) There is a serious question as to whether or not the petition for the writ which was issued by Judge Skinker was sufficient.The petitioner was being held by the sheriff under the court's order granting the writ of habeas corpus ad testificandum, and a copy of this order should have been attached to the petition or a statement should have been made that the sheriff refused to issue a copy of such order.Sec. 1878, R.S. 1919;State ex rel. v. Dobson, 135 Mo. 1.(3) The Warden of the Penitentiary rightly performed his duty when he released McBride to the Sheriff of Texas County under a writ of habeas corpus ad testificandum issued by the circuit court of said county.The part of Sec. 5432, R.S. 1919, which provides that a writ of habeas corpus shall not issue to bring a person into court as a witness who is detained because of a sentence for felony, is unconstitutional, even though this court did at one time hold the opposite view.Ex parte Marmaduke, 91 Mo. 228.The dissenting opinion in this case written by Judge SHERWOOD appears to be the sounder reasoning, and more nearly presents the views of the present court.The circuit court is granted constitutional authority to issue the writ of habeas corpus.Art. VI, Sec. 22, Constitution of Missouri;State ex rel. v. Locker266 Mo. 393.If this right can be taken away from the circuit court by the Legislature, as the Supreme Court held in the Marmaduke case, then why could they not take the right from this court by statute?It has been held in a recent case by this court that the Legislature has no power to limit their right to issue the writ.State ex rel. Billings v. Rudolph, 17 S.W. (2d) 932.This opinion follows the holding of the court in a former case.In re Hagan, 295 Mo. 440.The writ of habeas corpus ad testificandum is as old as the writ of habeas corpus ad prosequendum, both coming down to us from the common law.Ex parte Marmaduke, 91 Mo. 250.That the prisoner, McBride, escaped from the custody of the officer there can be no doubt, even though he was at the time considered a trusty, and was properly charged in the information with escaping from an officer.Sec. 3161, R.S. 1919;State v. Betterton, 295 S.W. 547.

Barton & Moberly for respondent.

(1) While certiorari is the proper remedy to review a habeas corpus proceeding neither the Attorney-General, nor the Warden of the Penitentiary, relators in this cause, is a party at interest in substance, nor are theyparties of record, and therefore are not proper plaintiffs in this cause, and the writ should be quashed.11 C.J. 135, 137.To authorize them to maintain this action their interest must be a substantial one and must be an interest not common to the public in general.11 C.J. 135, 137.(2) The jurisdiction of this cause was in Wright County because it was in Wright County that the defendant was restrained by the Sheriff of Texas County.Secs. 1876, 1877, R.S. 1919.(a)The court did not attempt to exercise any jurisdiction over the Warden of the Penitentiary in this action, and the Warden was neither a necessary nor proper party in the trial court, nor as a relator herein.(b) A person who escapes from the penitentiary may only be imprisoned until tried for the escape if his time expired before he was reincarcerated in the penitentiary.Sec. 3172, R.S. 1919.(c) No authority was in the hands of the sheriff to hold McBride and therefore none could be attached to the petition for a writ of habeas corpus.(3) When a person is sentenced to the penitentiary he can only be released therefrom in a manner provided by law, and the law expressly prohibits his being released under a writ of habeas corpus ad testificandum, as McBride was released in this case, in March, 1928.Sec. 5432, R.S. 1919;Ex parte Marmaduke, 91 Mo. 228.The writ of habeas corpus referred to in the Constitution is a release for the benefit of the prisoner and not for the convenience of law enforcement officers, or defendants in other cases.Constitution, Art. 6, sec. 22.(4) Whether the defendant was released because of the illegality of the writ of habeas corpus ad testificandum, or because his sentence expired while he remained at large, or whether he had actually served his time, were matters of fact, which respondent judge decided upon evidence dehors the record, and whether he decided them correctly or not he had jurisdiction of the cause, and his action cannot be reviewed in this proceeding.State ex rel. v. Westhues, 315 Mo. 672;11 C.J. 111, 199;State v. Robertson, 187 S.W. 34;State v. Goodrich, 257 Mo. 40;State v. Taylor, 224 Mo. 293;State v. Smith, 176 Mo. 90.

ATWOOD, J.

Relator seeks by our writ of certiorari to quash the judgment of the Circuit Court of Webster County, Missouri, in the habeas corpus proceeding of one Joe McBride, petitioner.The scope of our review under this writ is limited to jurisdictional matters and errors appearing on the face of the record in the habeas corpus proceeding which has been certified to us in this proceeding.[State ex rel. Gentry v. Westhues, 315 Mo. 672, 678, 286 S.W. 396.]We take the record as we find it, excluding the mere evidence, which can in the nature of things relate to the merits only.[State ex rel. v. Broaddus, 245 Mo. 123, 136, 149 S.W. 473.]

Respondent's return shows that on June 12, 1929, Joe McBride filed petition for writ of habeas corpus in the Circuit Court of Wright County, Missouri, alleging that he was then and there unlawfully deprived of his liberty by Harry Kelley under a pretended judgment convicting him of grand larceny for a term of two years, beginning May 17, 1927, and ending May 17, 1929, and further alleging that "said term has fully expired and that said sheriff has no legal papers or authority entitling him to hold this petitioner."Said return further shows that writ of habeas corpus was thereupon issued as prayed and made returnable on the same day before Honorable C.H. Skinker, Judge of the Wright County Circuit Court; that on the return day, by agreement of the parties said cause was transferred to the Circuit Court of Webster County, Missouri, and leave given the said Kelley to make return to said writ on or before June 24, 1929; that the said Joe McBride thereupon gave bond for his appearance in said court on June 24, 1929, the date upon which said cause was set down for hearing; that on said date the said Harry Kelley, Sheriff of Texas County, Missouri, filed his return to said writ of habeas corpus in the Circuit Court of Webster County purporting to produce the body of the said McBride before the Honorable C.H. Skinker, Judge of said Circuit Court, and stating the reason for his detention as follows:

"Joe McBride was sentenced in the Circuit Court of Laclede County, Missouri, at the May adjourned term thereof, 1927, to serve a term of two years in the Missouri Penitentiary, the beginning of said term to be on the 21st day of June, 1927, under a plea of guilty to the charge of larceny.The said Joe McBride was, under said sentence and judgment, conveyed to the Missouri Penitentiary, and was, by him, the said warden, safely and securely kept, until the 11th day of March, 1928.On the said 11th day of March, 1928, the said Joe McBride was lawfully, under a writ of habeas corpus ad testificandum, sent out to Texas County to appear in a case then pending in Texas County Circuit Court wherein the State of Missouri was plaintiff and Don Fike was defendant, as a witness for the State.While lawfully in said County of Texas, and State of Missouri, in lawful custody of the officers, the said Joe McBride did, unlawfully and feloniously, break said custody, and depart whithersoever he would.Respondent further respectfully states that the said Joe McBride remained out of the custody of the officers of the Missouri Penitentiary for a period of from on or about the 13th day of March, 1928, until on or about the 24th day of June, 1929, at which time he was apprehended by the officials of Oklahoma, and returned to the officers of Missouri, to serve out the remainder of said term in the Missouri Penitentiary.Respondent further respectfully states that the said Joe McBride served a period of time in the Missouri Penitentiary from the 21st day of June, 1927, until on or about the 13th day of March, 1928, and that all the remaining time since the 21st day of June, 1927, the said Joe McBride has not been confined in the Missouri Penitentiary, or any other...