State ex rel. Rudolph v. Ryan

• Decision Date: 30 April 1931
• Docket Number: 30993
• Citation: 38 S.W.2d 717,327 Mo. 728
• Parties: The State ex rel. Leslie Rudolph, Warden of Missouri State Penitentiary, v. O'Neill Ryan, Judge of Division 11 of Circuit Court of City of St. Louis
• Court: Missouri Supreme Court

38 S.W.2d 717

327 Mo. 728

The State ex rel. Leslie Rudolph, Warden of Missouri State Penitentiary, v. O'Neill Ryan, Judge of Division 11 of Circuit Court of City of St. Louis

No. 30993

Supreme Court of Missouri

April 30, 1931

Provisional rule discharged and proceeding dismissed.

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

(1) It is generally the rule that the jurisdiction of the lower court must be challenged in that court before prohibition will lie in this court; this is not, however, a hard-and-fast rule, and is not enforced by this court when it is evident that an application to the lower court would be of no avail. State ex rel. Burton v. Montgomery, 316 Mo. 664; State ex rel. McEntee v. Bright, 224 Mo. 526; State ex rel. McCaffery v. Aloe, 152 Mo. 484. (2) The warden of the Missouri State Penitentiary is not only without authority to release a prisoner on a writ of habeas corpus ad testificandum, but is prohibited by law from doing so. Sec. 1745, R. S. 1929; Ex parte Marmaduke 91 Mo. 228.

Franklin Miller, Circuit Attorney, and Forrest G. Ferris, Jr. Assistant Circuit Attorney, for respondent.

(1) Sec. 1745, R. S. 1929, relied upon by relator for support of his case, though general in its terms, does not specifically mention the State as a party, nor include the State by necessary implication. Therefore, the State being sovereign and its right in question one of prerogative, the statute does not apply to or affect it. 36 Cyc. 1171; State v Adair, 68 N.C. 68; Ex parte Harris, 73 N.C. 65; In re McClure Co., 21 F.2d 538; State v. Kinne, 41 N.H. 238; State v. Brewer, 64 Ala. 287; United States v. Herron, 87 U.S. 251; Potter v. F. & D. Co., 101 Miss. 823. (2) The right and power of the State to bring a convict from prison to court to testify in behalf of the State, is not dependent upon legislative enactment, but is given by the Constitution. State ex rel. Billings v. Rudolph, 17 S.W.2d 732; In re Hagan, 295 Mo. 435. (3) The common law authorized the writ of habeas corpus ad testificandum for the production in court of witnesses undergoing sentence for crime. It is not to be presumed that the Legislature intended to make any innovation upon the common law further than the case absolutely required. Ex parte Marmaduke, 91 Mo. 253; State ex rel. v. Breuer, 304 Mo. 412; Lewis' South. Stat. Constr. (2 Ed.) sec. 573; 36 Cyc. 1178; Potter's Dwarris on Stat., etc., 185. (4) The power to issue process and produce witnesses is an inherent power of courts which is essential to their existence and the due administration of justice, and does not depend upon legislative enactment. R. S. 1929, sec. 1844; 15 C. J. 732; Ex parte Marmaduke, 91 Mo. 251; State ex rel. v. Rudolph, 17 S.W.2d 932; Adams v. Cowles, 95 Mo. 501; Ex parte Zorn, 241 Mo. 267; In re Hagan, 295 Mo. 435.

OPINION

Gantt, J.

Original proceeding in prohibition. Cause submitted on the pleadings. On December 17, 1930, a writ of habeas corpus ad testificandum issued by the Circuit Court of the City of St. Louis was served on the warden of the penitentiary, commanding him to produce in said court Dode Kelley, a prisoner in the penitentiary under sentence for a felony, to testify as a witness for the State in the case of State v. Sellards. The warden refused to obey the writ. Thereupon a citation was issued by said court and served on the warden, commanding him to appear and show cause why an attachment should not issue against him for contempt of court in refusing to obey the writ. Further proceedings under said citation were prohibited by our rule in prohibition.

The warden questions the authority of the circuit court to issue the writ. Circuit courts have jurisdiction over criminal cases. [Sec. 22, Art. VI, Constitution.] They are authorized by the Constitution to try such cases. They cannot do so without witnesses. Authority to compel the attendance or production of witnesses is an element of jurisdiction. It is essential to the existence of said courts and to the due administration of justice. [15 C. J. 732.] Without such authority there is no jurisdiction. In other words, said courts have the inherent power to compel the attendance or production of witnesses. Having such power they are authorized to issue process, "according to the principles and usages of law," for that purpose. [Yeoman v. Younger, 83 Mo. 424, l. c. 429.] Furthermore, by statute, declaratory of the common law, "all courts shall have power to issue all writs which may be necessary in the exercise of their respective jurisdictions, according to the principles and usages of law." [Sec. 1844, R. S. 1929.] The writ under consideration is of ancient origin and has been available at all times to compel the custodian to produce a prisoner in court to give testimony. We have no doubt of the full and complete authority of the circuit court of the City of St. Louis to issue the writ. Having such authority, said court is authorized to compel the warden to obey the writ. However, it must be understood that the writ is grantable in the discretion of the court. Abuse of the process should not be permitted. On the hearing of the petition for the writ, the court should require strict proof of the materiality of the testimony and the necessity of the attendance of the prisoner as a witness. If it appears that the application is in good faith and the testimony is material and important, the petition for the writ should be granted.

The warden cites as sustaining his contention Section 1745, Revised Statutes 1929, which follows:

"Courts of record, and any judge or justice thereof, shall have power, upon the application of any party to a suit or proceeding, civil or criminal, pending in any court of record, or public body authorized to examine witnesses, to issue a writ of habeas corpus, for the purpose of bringing before such court or public body any person who may be detained in jail or prison, within the State, for any cause, except a sentence for a felony, to be examined as a witness in...