State ex rel. Stewart v. Blair
| Decision Date | 09 February 1948 |
| Docket Number | 40316,40345 |
| Citation | 208 S.W.2d 268,357 Mo. 287 |
| Parties | State of Missouri at the Relation of Ben B. Stewart, Acting Warden of Missouri State Penitentiary, Relator, v. Sam C. Blair, Judge of the 14th Judicial Circuit of Missouri. State of Missouri at the Relation of Ben B. Stewart, Acting Warden of Missouri State Penitentiary, Relator, v. Emory E. Smith, Circuit Judge of the 24th Judicial Circuit of Missouri |
| Court | Missouri Supreme Court |
Reported at 357 Mo. 287 at 300.
Original Opinion of November 10, 1947, Reported at 357 Mo. 287.
On Motion for Rehearing.
We held in the principal opinion (text to marginal notes 8-12) that the judgment of the Newton County circuit court, convicting Cory of Robbery, could not be impeached on habeas corpus before respondent Judge Blair by proof of unverified recitals in Cory's motion for new trial in the criminal case alleging he had been denied adequate time to prepare for trial, which recitals also were outside the record proper. But in the concluding part of the opinion we added that competent evidence on that issue might have been introduced before Judge Blair, since it would not have contradicted the judgment and record in the criminal case.
In their motion for rehearing here, counsel for respondent Judge Blair (actually for Cory) showed that Cory did testify on that issue in the habeas corpus case, but that the testimony was omitted from Judge Blair's return in the instant certiorari proceeding, because our decisions [1] hold certiorari brings up only the record proper showing jurisdictional defects or errors which cannot be reached by appeal; and that "we take the record as we find it excluding the mere evidence which can, in the nature of things, relate to the merits only." Nevertheless, in view of our holding, supra, in the principal opinion that competent evidence of that character could have been introduced in the habeas corpus case, counsel asked in the motion that Judge Blair be permitted to amend his return here by including therein Cory's aforesaid testimony on that point before him. We granted that request and passed the cause to our next conference. The amendment of the return has been made, and Cory's evidence is before us.
The learned Assistant Attorney General stands on the authorities just cited below, and contends that whether Cory's testimony was admissible or not in the habeas corpus case those decisions preclude its admission in this certiorari proceeding because it was not a part of the record proper. There can be no doubt that the testimony was admissible below since it did not impeach the judgment in the criminal case Young v. Parker, 355 Mo. 245, 246(1), 195 S.W.2d 743(1), 744(2). And it is also true that a habeas corpus proceeding is not appealable, and therefore comes within the formula of the above decisions as a cause that may be reviewed by certiorari. State ex rel. Gentry v. Westhues, supra, 315 Mo. l.c. 678(1), 286 S.W. l.c. 389(1).
The only question is whether we shall depart from the doctrine of the cited decisions [1] insofar as they hold the review in certiorari must be confined to the record proper, disregarding "mere evidence." (The Woodmansee and Trust Company cases do not go that far). Confining ourselves to cases of the present character -- criminal cases involving the issue of due process under the State and Federal Constitutions -- we think we should if the extraneous evidence bears on that issue and does not impeach the judgment rendered. In our opinion a denial of due process is tantamount to an excess of jurisdiction, at least. Our case law on that point has been restrictive, whereas the general doctrine admits facts bearing strictly on that issue. 14 C.J.S., p. 255, sec. 126; 11 C.J., p. 176-7, sec. 267; 10 Am. Jur., p. 543, sec. 18.
Our power to issue writs of certiorari is constitutional, Art. VI, Sec. 3, Const. Mo. 1875; Art. V, Sec. 4, Const. Mo. 1945. These provisions refer to the common law writ. But they do not preclude us from enlarging the scope of the writ. Sec. 2008, R.S. 1939-Mo. R.S.A. provides: "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." And it was held in State ex rel. Harrison County Bank v. Springer, 134 Mo. 212, 222(5), 35 S.W. 589, 590(3), citing and construing that statute: "Our courts have undoubted authority to mold the procedure upon that writ so as to conform to 'the principles and usages of law,' as developed under the common law system, so far as may be consistent with the letter and intent of the existing statutory law." See also State ex rel. Barker v. Wuderman, 254 Mo. 561, 569(1), 163 S.W. 849, 850(1); State ex rel. Gardner v. Hall, 282 Mo. 425, 431(4), 221 S.W. 708, 710(6); State ex rel. St. L. Union Trust Co. v. Neaf, supra, 346 Mo. l.c. 92(1), 139 S.W.2d l.c. 961(1).
We therefore proceed to an examination of prisoner Cory's testimony as returned to us. It states in substance that...
To continue reading
Request your trial
-
State ex rel. Morton v. Cave
... ... 1222; State ex rel ... Booker v. Bland, 197 S.W.2d 967, 355 Mo. 768; ... Vanderhoff v. Lawrence, 206 S.W.2d 569; State ex ... rel. Stewart v. Blair, 208 S.W.2d 268; State ex rel ... Kansas City So. R.R. Co. v. Shain, 105 S.W.2d 915; ... State ex rel. Duraflor Products Co. v ... ...
-
State v. Burrington
...that he was denied the effective assistance of counsel. State v. Stucker, 352 Mo. 1056, 180 S.W.2d 719; State ex rel Stewart v. Blair (& Smith), 357 Mo. 287, 208 S.W.2d 268. Since under the officially certified and agreed to transcript the appellant is unable to factually support or demonst......
-
State ex rel. Bennett v. Gagne, WD
...or by a successive application for writ of habeas corpus if petitioner fails in the initial application. See State ex rel. Stewart v. Blair, 357 Mo. 287, 208 S.W.2d 268 (1947) (where the petitioner was granted the writ of habeas corpus and review was sought by way of writ of certiorari). Al......