State ex rel. Corcoran v. Buder

• Decision Date: 21 May 1968
• Docket Number: No. 33110,33110
• Citation: 428 S.W.2d 935
• Parties: 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.
• Court: Missouri Court of Appeals

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.

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 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 in the Supreme Court; in effect, contending that we have jurisdiction in Mandamus only in those matters in which we would have appellate jurisdiction. Respondent cites the case of State ex rel. Douglas v. Tune, Mo.App., 191 S.W. 1078. This case was decided in 1917. Under the Constitution of 1945, Article V, § 4, V.A.M.S., we have concurrent jurisdiction with the Supreme Court in the exercise of superintending control over all inferior courts and may issue remedial writs to accomplish that control and this is so, notwithstanding constitutional questions and other questions over which the Supreme Court has exclusive jurisdiction on appeal are directly raised in the pleadings under review. State ex rel. City of Creve Coeur v. Weinstein, Mo.App., 329 S.W.2d 399 and State ex rel. City of Nansfield v. Crain, Mo.App., 301 S.W.2d 415.

Respondent also contends that Relator's proper remedy is by appeal and since Relator has filed in the trial court a Notice of Appeal to the Supreme Court he is now relegated to that relief and by filing said Notice of Appeal has conceded that this court does not have jurisdiction in this Mandamus proceeding. We do not agree for a reason that will appear later. We digress a moment to comment on a trend of thought that wends its way through Respondent's brief. Respondent's brief states that Respondent did not expressly spell out his reasons for sustaining defendant's Motion to Dismiss, reminding us that the Motion contained numerous attacks on the sufficiency of the Information and that it must be presumed that the Relator would not be left without his normal remedy under Criminal Rule 28.04, V.A.M.R. We think that Respondent did expressly spell out his reason for sustaining defendant's Motion to Dismiss in his Order of November 2, 1967, wherein he overruled and denied Relator's Motion for Rehearing. Also, we point out that Respondent denied and overruled defendant's Motion to Suppress the evidence seized by the police. This action of Respondent had the effect of finding the search and seizure to be reasonable and lawful and, therefore, to find against the defendant on such allegations contained in his Motion to Dismiss and to suppress the evidence charging unreasonable search and seizure. If Respondent had found the information to be insufficient he would have so stated in his order of November 2, 1967. Further, if Respondent found the information insufficient such a determination could have been made from the face of the information and there would have been no need to resort to the taking of testimony. Obviously, the purpose of taking the testimony was to inform the court of 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 arrest that followed some six months later. These are matters dehors the record and needed the taking of oral testimony. We rule that Respondent did spell out the sole basis and scope of his ruling sustaining defendant's Motion to Dismiss and that the reason given in his order of November 2, 1967 is the only reason for his action. Bearing this in mind we return to Respondent's contention that Relator's proper remedy is by appeal. It is true that Relator did file in the trial court a Notice of Appeal to the Supreme Court but we were advised at the oral argument that Relator has taken no further steps to perfect said appeal because he entertains grave doubt as to his right to appeal Respondent's action in dismissing the information filed against the defendant for the...