State ex rel. Corcoran v. Buder, No. 33110

CourtMissouri Court of Appeals
Writing for the CourtRUDDY; ANDERSON, P.J., and WOLFE
Citation428 S.W.2d 935
Docket NumberNo. 33110
Decision Date21 May 1968
PartiesSTATE of Missouri ex rel. James S. CORCORAN, Circuit Attorney for the City of St. Louis, State of Missouri, Relator, v. Honorable William E. BUDER, Judge of the Circuit Court of the City of St. Louis, State of Missouri, Respondent.

Page 935

428 S.W.2d 935
STATE of Missouri ex rel. James S. CORCORAN, Circuit
Attorney for the City of St. Louis, State of
Missouri, Relator,
v.
Honorable William E. BUDER, Judge of the Circuit Court of
the City of St. Louis, State of Missouri, Respondent.
No. 33110.
St. Louis Court of Appeals, Missouri.
May 21, 1968.

Page 936

James S. Corcoran, Circuit Atty., James E. Darst, First Asst. Circuit Atty., St. Louis, for relator.

Shifrin, Treiman, Schermer & Susman, Thadeus F. Niemira, Donald R. Carmody, St. Louis, for respondent.

RUDDY, Judge.

This is an original proceeding in Mandamus filed in this court by James S. Corcoran, Circuit Attorney for the City of St. Louis, seeking our writ commanding Respondent, a Judge of the Circuit Court of the City of St. Louis, to vacate his order sustaining a Motion to Dismiss an Information filed against Walter Floyd Little. Our Alternative Writ of Mandamus directed to Respondent was ordered to issue.

On July 7, 1967 Little was charged by warrant and later by information with unlawfully and feloniously selling to one Royce Boone on the fifth day of January, 1967, a Stimulant Drug (Amphetamine). Defendant waived his preliminary hearing in the St. Louis Court of Criminal Correction and on his arraignment in the Circuit Court he formally entered a plea of not guilty. Thereafter, counsel for defendant filed a Motion to Dismiss the Information and to suppress any evidence seized by the police on January 5, 1967. The aforesaid Motion alleged that Sections 195.240 and 195.270 RSMo 1959, V.A.M.S., on which said information is based, are unconstitutional in that they violate the due process clause of the Fifth Amendment and of the Fourteenth Amendment to the Constitution of the United States. It is further alleged that the information does not charge an offense against the defendant and that defendant has been deprived of due process of law in violation of the Sixth Amendment and Fourteenth Amendment to the Constitution of the United States and further alleges unreasonable search and seizure. The allegation in said Motion to Dismiss pertinent to our discussion is as follows:

'The defendant has been denied due process of law in violation of the Fifth Amendment and the Fourteenth Amendment to the Constitution of the United States and has been deprived of the equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States, in that, the information filed against the defendant reveals on its face that the alleged sale took place on January 5, 1967 but the State did not promptly arrest the defendant and advise him of his constitutional rights and an information was not filed against the defendant until July 14, 1967. Defendant further believes that such conduct by the police is a violation of police administrative regulations and procedure and that such violation constitutes a further deprivation of the defendant's due process and equal protection constitutional rights.'

Subsequent to filing the aforesaid Motion to Dismiss the Information and to suppress any evidence seized by the police on January 5, 1967 the aforesaid motion was taken up by the court at which time testimony was heard. We have not been favored with a transcript of this testimony by either the Relator or the Respondent. However, it appears from the briefs of the parties that the testimony

Page 937

concerned the date of the seizure of the evidence by the police and the circumstances surrounding the search that resulted in the seizure of the evidence and the subsequent arrest. Subsequent to the hearing, namely, October 4, 1967, the Respondent entered the following order: 'Motion to Dismiss Granted, Motion to Suppress Denied.' Thereafter, Relator filed a Motion for Rehearing, asking the court to '* * * grant a rehearing on the defendant's Motion to Dismiss.' On November 2, 1967 Respondent entered the following:

'Order of Court:

* * *

* * *

'The Information filed herein alleges that the offense was committed on or about January 5, 1967, and the evidence indicates that defendant was arrested and charged approximately six (6) months later.

'The facts do not reveal a situation where defendant departed from the city or otherwise disappeared but rather shows defendant was in police custody on a number of occasions during such six (6) month period. The Court fully appreciates that under certain circumstances there may be valid cause for delay but the evidence herein demonstrates no justification for the undue delay presented herein.

'Motion for Rehearing denied and overruled. So ordered.

'William E. Buder

Judge'

On the day this last order was entered, namely, November 2, 1967, Relator filed a notice of appeal to the Supreme Court of Missouri from the order of Respondent '* * * sustaining Defendant's Motion to Dismiss and overruling State's Motion for Rehearing, * * *' further reciting that under said order defendant was discharged. We were informed at the oral argument that nothing further has been done to implement or perfect this appeal by Relator. On the following day, namely, November 3, 1967, Relator filed this proceeding in Mandamus in this court.

Relator contends that the Respondent had no authority or jurisdiction to dismiss the information on the ground that there was no justifiation for the delay in arresting defendant six months after the offense was committed. Before discussing this contention raised by Relator we dispose of several contentions made by counsel for the Respondent, who are also counsel for defendant, Little.

Respondent contends that this court does not have jurisdiction to issue Mandamus in this case since to proceeding in the lower court involves a felony case and constitutional issues and, therefore, the jurisdiction is...

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9 practice notes
  • State ex rel. Westfall v. Mason, No. 61499
    • United States
    • United States State Supreme Court of Missouri
    • February 11, 1980
    ...Rule 30.02) that extraordinary relief is proper to review interlocutory orders in criminal cases. See State ex rel. Corcoran v. Buder, 428 S.W.2d 935, 939 (Mo.App.1968). Further, it is settled law that, "The writ is properly invoked to restrain the enforcement of orders beyond or in excess ......
  • State v. Coor, No. 14888
    • United States
    • Court of Appeal of Missouri (US)
    • October 26, 1987
    ...560 S.W.2d at 59. Another case in which the inadequacy of the State's right of appeal was recognized is State ex rel. Corcoran v. Buder, 428 S.W.2d 935 (Mo.App.1968). In that case an information had been dismissed on the due process ground that the defendant had not been afforded a speedy t......
  • State v. Casaretto, No. 59523
    • United States
    • Court of Appeal of Missouri (US)
    • November 5, 1991
    ...518 S.W.2d 630 (Mo. banc 1974); State ex rel. Martin v. Berrey, 560 S.W.2d 54 (Mo.App., W.D.1977); State ex rel. Corcoran v. Buder, 428 S.W.2d 935 (Mo.App., St.L.Ct.App.1968). 2 See e.g. State v. Clark, 756 S.W.2d 565 (Mo.App., W.D.1988) (statute disqualifying certain possible witnesses is ......
  • State ex rel. Westfall v. Campbell, No. 45421
    • United States
    • Missouri Court of Appeals
    • May 11, 1982
    ...ground does not give rise to an appeal. State ex rel. Martin v. Berrey, 560 S.W.2d 54, 59 (Mo.App.1977); State ex rel. Corcoran v. Buder, 428 S.W.2d 935, 939 (Mo.App.1968). In an exercise of our discretion, we issued the preliminary order in prohibition because an appeal is not available to......
  • Request a trial to view additional results
9 cases
  • State ex rel. Westfall v. Mason, No. 61499
    • United States
    • United States State Supreme Court of Missouri
    • February 11, 1980
    ...Rule 30.02) that extraordinary relief is proper to review interlocutory orders in criminal cases. See State ex rel. Corcoran v. Buder, 428 S.W.2d 935, 939 (Mo.App.1968). Further, it is settled law that, "The writ is properly invoked to restrain the enforcement of orders beyond or in excess ......
  • State v. Coor, No. 14888
    • United States
    • Court of Appeal of Missouri (US)
    • October 26, 1987
    ...560 S.W.2d at 59. Another case in which the inadequacy of the State's right of appeal was recognized is State ex rel. Corcoran v. Buder, 428 S.W.2d 935 (Mo.App.1968). In that case an information had been dismissed on the due process ground that the defendant had not been afforded a speedy t......
  • State v. Casaretto, No. 59523
    • United States
    • Court of Appeal of Missouri (US)
    • November 5, 1991
    ...518 S.W.2d 630 (Mo. banc 1974); State ex rel. Martin v. Berrey, 560 S.W.2d 54 (Mo.App., W.D.1977); State ex rel. Corcoran v. Buder, 428 S.W.2d 935 (Mo.App., St.L.Ct.App.1968). 2 See e.g. State v. Clark, 756 S.W.2d 565 (Mo.App., W.D.1988) (statute disqualifying certain possible witnesses is ......
  • State ex rel. Westfall v. Campbell, No. 45421
    • United States
    • Missouri Court of Appeals
    • May 11, 1982
    ...ground does not give rise to an appeal. State ex rel. Martin v. Berrey, 560 S.W.2d 54, 59 (Mo.App.1977); State ex rel. Corcoran v. Buder, 428 S.W.2d 935, 939 (Mo.App.1968). In an exercise of our discretion, we issued the preliminary order in prohibition because an appeal is not available to......
  • Request a trial to view additional results

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