State ex rel. Billings v. Rudolph

Decision Date31 May 1929
PartiesThe State ex rel. James v. Billings, Prosecuting Attorney of Dunklin County, Petitioner, v. Leslie Rudolph, Warden of Missouri State Penitentiary, Respondent
CourtMissouri Supreme Court

Writ awarded.

James V. Billings for petitioner.

(1) Habeas corpus is the proper remedy of the petitioner under the facts. (a) The Supreme Court has express power to issue the writ of habeas corpus, and to hear and determine same. Sec. 3, Art. VI, Mo. Constitution; In re Letcher, 269 Mo. 140; Ex parte Bethrum, 66 Mo. 545; In re Hagan, 295 Mo. 435. (b) The writ issued at common law to remove from confinement in one county a prisoner to another county. Re Welton, 1 Cromp & J. 459, 1 Tyrw. 385; Reg. v Peacock, 12 Cox C. C. 21; Reg. v. Day, 3 Fost. & F. 526; Ex. P. Bollman, 4 Cranch (U.S.) 75, 97, 2 L.Ed 554; 3 Bl. Comm. 129, 130; State v. Wilson, 38 Conn 126; People v. Flynn, 7 Utah, 378, 26 P. 1114; Ex parte Ah Men, 77 Cal. 202, 19 P. 380; 15 Am. & Eng. Ency. Law (2 Ed.) 191; Ponzi v. Fessenden, 258 U.S. 255, 264 66 L.Ed. 607, 22 A. L. R. 879; Com. v. Ross, 28 Pa. Co. Ct. 276; Flagg v. State, 11 Ga.App. 40; Rigor v. State, 101 Md. 465, 61 A. 631. (c) The writ of habeas corpus is a proper proceeding to remove a convict from the penitentiary to be put upon trial. Rigor v. State, 101 Md. 465, 61 A. 631; Flagg v. State, 11 Ga.App. 40; Com. v. Ross, 28 Pa. Co. Ct. 276; Ponzi v. Fessenden, 258 U.S. 255, 264; State v. Wilson, 38 Conn. 126; People v. Flynn, 7 Utah 378, 26 P. 1114; Ex parte Ah Men, 77 Cal. 202, 19 P. 380; State ex rel. v. Breuer, 304 Mo. 381, 264 S.W. 1; Article 6, Chap. 13, R. S. 1919, contains no provision prohibiting the pursuance of the writ herein. It refers only to the form of the writ known at common law as habeas corpus ad subjiciendum , and habeas corpus cum causa. The statutes have no application to the form of the wirt herein authorized by the common law. Ex parte Bethrum, 66 Mo. 545; In re Hagan, 295 Mo. 435. (2) The person accused has a constitutional right to a speedy trial. Sec. 22, Art. II, Mo. Constitution. For the enforcement of said provision, the Legislature has limited the time in which indictments may be filed, and further provided that same must be tried within a certain number of terms. Sec. 3737, R. S. 1919; State v. Thompson, 155 Mo. 307; Secs. 4040, 4042, R. S. 1919; State v. Wear, 145 Mo. 162; State ex rel. Stevens v. Wurdeman, 295 Mo. 566. (3) There is no constitutional or statutory provision prohibiting the prosecution of indictments for crime pending against the accused who is undergoing sentence. The penitentiary is not a sanctuary for crime. No immunity has been given a convict. State ex rel. v. Breuer, 304 Mo. 381; State v. Connell, 49 Mo. 282; Ex parte Allen, 196 Mo. 226. (4) The overwhelming weight of authority holds that a convict undergoing sentence may be prosecuted upon indictments for felony committed prior to his incarceration. 13 C. J. 919; 41 L. R. A. 1095, and note; Simpson v. State, 56 Ark. 8; Peo. v. Majors, 65 Cal. 138; Flagg v. State, 11 Ga.App. 37; Peri v. Peo., 65 Ill. 17; Huffaker v. Com., 124 Ky. 115; Rigor v. State, 101 Md. 465, 61 A. 631; Singleton v. State, 71 Miss. 782; State v. Tranmer, 154 P. 80 (Nev.) ; Ex. P. Tranmer, 35 Nev. 56, 126 P. 337; State v. Fayetteville, 6 N.C. 371; Henderson v. James, 52 Ohio St. 242; Com. v. Raymunno, 219 Pa. 204, 68 A. 184; Com. v. Ross, 28 Pa. Co. 276; Brown v. State, 50 Tex. Cr. 114; Coleman v. State, 35 Tex. Cr. 404; Clifford v. Dryden, 31 Wash. 545, 72 P. 96; State v. Keefe, 17 Wyo. 277, 98 P. 122; State ex rel. v. Breuer, 304 Mo. 381, 264 S.W. 1.

Otto & Potter for defendant Stocks.

(1) The petition does not state a cause of action. The writ of habeas corpus is a writ of right, but it is not a writ of course and the Legislature may make needful and reasonable regulations in regard to the exercise of the writ so long as they do not impair its efficiency. Ex parte Guame, 162 Mo. 390. The Legislature has provided that where a person is confined on a charge of crime an application for his release shall be first made to the judge of the circuit court of the county in which the applicant is held in custody. Sec. 1944, R. S. 1919. The court will take judicial notice of the fact that the prisoner, Henry Stocks, is confined at the penitentiary located in Cole County. The application for the release of Henry Stocks should therefore have been first filed in the Circuit Court of Cole County, or good and sufficient statutory reasons for failing to apply to said circuit court should have been pleaded in the petition. State ex rel. Aull v. Field, 112 Mo. 554; Ex parte Guame, 162 Mo. 390; Ex parte Schaffener, 173 Mo.App. 403; State ex rel. Gentry v. Westhues, 315 Mo. 678; Ex parte Tracy, 249 U.S. 551, 63 L.Ed. 768. (2) The petition fails to state a cause of action for the reason that it fails to show that the prisoner can now be legally tried in the Circuit Court of Dunklin County on the indictments returned at the February term, 1928. Dunklin County is a part of this circuit as set out in Section 2521, Laws 1927, page 155, provides for three terms of court annually in Dunklin County. If, therefore, the prosecuting attorney desired to try the prisoner on any of said indictments he was compelled to do so within the time provided by Sections 4040 to 4043, R. S. 1919. If under the provisions of Section 4043, Henry Stocks could have been tried during the third term after he was indicted, that term ended with the February term, 1929, and Exhibit A filed with the petition herein shows that the trials of all of said indictments were continued at the February term, 1929. State v. Wear, 145 Mo. 162. The application for habeas corpus should affirmatively show and allege that he can be lawfully tried on the indictments pending against him, and having failed to make such showing, the writ herein should be denied. (3) The writ herein should be denied because no service has been had upon the Department of Penal Institutions of the State, which alone has the custody of and the supervision and control of the prisoner. Service herein has been had only upon Rudolph, who is alleged to be the warden of the penitentiary. The Department of Penal Institutions is a corporation whose chief officer is the director of penal institutions; he is chairman of the board of directors and the president of the corporation. Secs. 12626, et seq., Laws 1921, pp. 548 to 554. The duties of the warden are set out in Sec. 12472, R. S. 1919, which provides simply that he shall exercise general control and supervision over the government, discipline, and police regulations of the penitentiary in accordance with the orders, rules and regulations of the board. He has no individual control over the prisoner, except as provided in said section, and the said prisoner is not under his control, and he has no right to surrender said prisoner to any person or to transfer him to any place except under orders of the director of penal institutions and the board of governors thereof. (4) The writ should not issue for the reason that the Circuit Court of Dunklin County has no jurisdiction to try a prisoner confined in the penitentiary for a crime committed prior to his conviction therefor and on an indictment or information filed against him prior to his conviction. When a person is sentenced to imprisonment in the penitentiary it is the duty of the clerk of the court in which the sentence was passed to forthwith deliver a certified copy thereof to the sheriff of the county, who shall, without delay, cause such convict to be transferred to the penitentiary, Sec. 4061, R. S. 1919. The circuit court has no jurisdiction over the prisoner after an appeal has been granted or after the defendant is confined in the penitentiary on a plea of guilty. Ex parte Foister, 203 Mo. 690. The jurisdiction of a prisoner confined in the penitentiary has passed from the circuit court when the prisoner enters the prison. State v. Buck, 120 Mo. 496. If any trial court has jurisdiction thereafter, it is the circuit court of the county in which such prisoner is confined. The Supreme Court of Missouri in an unbroken line of decisions for over fifty years held that a defendant could not be tried on a second charge after he had been sentenced on a prior charge. Ex parte Meyer, 44 Mo. 279; State v. Watson, 95 Mo. 411; State v. Schierhoff, 105 Mo. 50; State v. Buck, 120 Mo. 479; State v. Wear, 145 Mo. 164; State v. Bell, 212 Mo. 130; State v. Barnes, 274 Mo. 628; State ex rel. Stevens v. Wurdeman, 295 Mo. 584. The only opinion of the Supreme Court in apparent conflict with the foregoing decisions is the case of State ex rel. Meininger v. Breuer, 304 Mo. 381, 264 S.W. 1. In this case Meininger applied for a writ of prohibition to prevent the defendant, who was judge of the circuit court, from trying the relator on a second charge after he had been tried and sentenced on a previous one. This court in a divided opinion held that the trial court had jurisdiction to proceed with the trial of Meininger, who was then out on bond pending an appeal in the first case. The opinion is clearly out of line with the former decisions of this court, and in any event is not an authority for the issuance of a writ of habeas corpus to take a prisoner out of the penitentiary for the purpose of trying him on an indictment returned prior to his first sentence. (5) There is no authority for the issuance of the writ in this case under the statutes of the State regulating the writ of habeas corpus. It may be contended that the Supreme Court has the inherent power to issue the writ of habeas corpus in the absence of statutes, and on such terms as the court may impose, but this doctrine should not be applied herein. (a) Because the statutes are...

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6 cases
  • State ex rel. Stewart v. Blair
    • United States
    • Missouri Supreme Court
    • November 10, 1947
    ... ... authorization of the warden. It was held under substantially ... simliar statutes in State ex rel. Billings v ... Rudolph, 322 Mo. 1163, 1172(6), ... [208 S.W.2d 273] ... 17 S.W.2d 932, 934(6) that the warden has both the control ... and the right ... ...
  • State v. McDonald
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    • Missouri Supreme Court
    • August 17, 1938
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  • State v. Hicks
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    • Missouri Supreme Court
    • February 5, 1945
    ... ... within the exceptions of the statute. State ex rel ... Stevens v. Wurdeman, 246 S.W. 189. (5) A verdict based ... on suspicion, conjecture or ... 566, 246 S.W. 189, (overruled in part -- see State ex ... rel. Billings v. Rudolph (Banc), 322 Mo. 1163, 1169, 17 ... S.W. 2d 932, 933), was an original action in ... ...
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    ... ... the exercise of the powers vested in it by the enabling act ... of 1939. State v. Rudolph, 322 Mo. 1163, 17 S.W.2d ... 932; State ex rel. Macklin v. Rombauer, 104 Mo. 619, ... 15 S.W. 850; Clark v. Austin, 340 Mo. 467, 101 ... S.W.2d ... ...
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