State ex rel. Stewart v. Blair, 40276.

• Decision Date: 14 July 1947
• Docket Number: No. 40276.,40276.
• Citation: 203 S.W.2d 716
• Parties: STATE OF MISSOURI, at the Relation of BEN B. STEWART, Acting Warden of the Missouri State Penitentiary, Relator, v. SAM C. BLAIR, Circuit Judge of the Fourteenth Judicial Circuit of Missouri.
• Court: Missouri Supreme Court

203 S.W.2d 716 STATE OF MISSOURI, at the Relation of BEN B. STEWART, Acting Warden of the Missouri State Penitentiary, Relator,
v.
SAM C. BLAIR, Circuit Judge of the Fourteenth Judicial Circuit of Missouri. No. 40276. Supreme Court of Missouri. Court en Banc, July 14, 1947.

Certiorari.

RESPONDENT'S RECORD QUASHED.

J.E. Taylor, Attorney General, and Gordon P. Weir, Assistant Attorney General, for relator.

(1) The Circuit Court of Cole County is without authority of law to go behind the records of a trial court in a criminal case and consider facts when the records of the trial court are complete upon their face and speak with absolute verity. Flansburg v. Kaiser, 184 S.W. (2d) 1004; Young v. Parker, 195 S.W. (2d) 743. (2) The information in the trial court of Pettis County is sufficient and complete upon its face to charge the defendant under the Habitual Criminal Act. Sec. 4854, R.S. 1939; State v. Schneider, 325 Mo. 486, 29 S.W. (2d) 698; State v. Hamilton, 340 Mo. 768, 102 S.W. (2d) 642; State v. Christup, 337 Mo. 776, 85 S.W. (2d) 1024; State v. Sumpter, 335 Mo. 620, 73 S.W. (2d) 760. (3) The Circuit Court of Cole County was without authority of law to impose a sentence of fourteen years and three months, when the verdict of the trial court of Pettis County had imposed a sentence of twenty-five years. Sec. 8404, R.S. 1939; State v. Mangiaracina, 344 Mo. 99, 125 S.W. (2d) 58.

Smith B. Atwood and S.W. James, Jr., for respondent.

(1) The information is insufficient to charge Galloway as a habitual criminal under Section 4854, R.S. 1939, in that it fixes the date of the commission of the second offense, to-wit, March, 1934, within the period of the sentence imposed upon him for the first offense, to-wit, 5 years from December 4, 1930, which is December 4, 1935. This is contrary to the limitations contained in the Habitual Criminal Act, providing that the second offense must have been committed after discharge from the sentence under the first. Sec. 4854, R.S. 1939; State v. Austin, 21 S.W. 31, 113 Mo. 538. (2) Galloway's conditional parole did not constitute a pardon entitling him to a discharge from his sentence. For the distinction between a pardon and a parole, see State v. Brinkley, 193 S.W. (2d) 49, which overruled State v. Asher, 246 S.W. 911. (3) A person may not be convicted, as was Galloway, under the Habitual Criminal Act while he is at large under a conditional commutation of sentence. A parole, or conditional commutation of sentence, is not a pardon within the meaning of the Habitual Criminal Act. Sec. 4854, R.S. 1939; State v. Brinkley, 193 S.W. (2d) 49; State v. Hefflin, 89 S.W. (2d) 938, 338 Mo. 236. (4) At the time of Galloway's trial and conviction, however, the rulings of this court were to the contrary. They held that a parole or conditional commutation of sentence was the same as a pardon, and that a prisoner at large on a parole was subject to prosecution as a habitual criminal. State v. Asher, 246 S.W. 911; State v. Donnell, 184 S.W. (2d) 1008, 353 Mo. 878; State v. Murphy, 133 S.W. (2d) 398, 345 Mo. 358. (5) That right of defense was restored to Galloway for the first time since the overruling of the Asher case by the Brinkley case; for the ruling in the Brinkley case is retroactive back to the Asher case, and has the effect of a declaration that the Asher case never was the law in his, Galloway's, circumstances. 21 C.J.S., sec. 194, pp. 326-7, citing Klocke v. Klocke, 208 S.W. 825, 276 Mo. 572. (6) Having been restored for the first time, since the decision in the Brinkley case, of the right to make his defense that he was not subject to be prosecuted as a habitual criminal because he was at large under a conditional commutation of sentence at the time of his trial, Galloway has the constitutional right to make that defense now in this habeas corpus proceeding. To deny him that right is to deny him the equal protection of the law, and to deprive him of his liberty without due process of law. U.S. ex rel. Kulick v. Kennedy, Warden, 157 Fed. (2d) 811; Constitution of Missouri, 1945; Constitution of United States. (7) Habeas corpus is a proper substitute for failure to appeal not only to determine points of jurisdiction, stricti juris, and to determine constitutional questions, but to prevent a complete miscarriage of justice where, as in Galloway's situation, an appeal would have been fruitless and unavailing. United States ex rel. Kulick v. Kennedy, Warden, 157 Fed. 811; Williams v. Kaiser, 65 S. Ct. 363, 323 U.S. 471.

TIPTON, C.J.

This is an original proceeding in certiorari to review the record of a habeas corpus case of Ervin Galloway v. Ben B. Stewart, Warden, Missouri State Penitentiary, tried in the circuit court of Cole County, Missouri. That court found that Galloway, hereafter referred to as the petitioner, was unlawfully convicted under the habitual criminal act for the reason that he had not been discharged from his former sentence by pardon or compliance with that sentence,

203 S.W.2d 717

and that, therefore, his sentence is erroneous as to time. The petitioner was thereupon sentenced to a term of fourteen years and three months in the penitentiary for the offense of larceny of an...