State ex rel. Stewart v. Blair
| Citation | 208 S.W.2d 268,357 Mo. 287 |
| Decision Date | 10 November 1947 |
| Docket Number | 40316,40345 |
| 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 |
Rehearing Denied February 9, 1948.
Original Proceeding in Certiorari.RECORDS OF COLE COUNTY CIRCUIT COURT AND NEWTON COUNTY CIRCUIT COURT IN HABEAS CORPUS PROCEEDINGS QUASHED.
Records of Cole County Circuit Court and Newton County Circuit Court in habeas corpus proceedings quashed.
J E. Taylor, Attorney General, and Gordon P. Weir, Assistant Attorney General, for relator.
(1) The Circuit Court of Cole County, on a habeas corpus proceeding, erred in going behind the records of the trial court to determine by extraneous evidence facts which did not appear upon the face of the record. Flansburg v. Kaiser, 184 S.W.2d 1004; Young v. Parker, 195 S.W.2d 743. (2) The Circuit Court of Cole County erred in going behind the records of the trial court to consider facts which did not go to the jurisdiction of the trial court. Ex parte McLaughlin, 210 Mo. 657, 109 S.W. 626; State v. Swope, 72 Mo. 399; Ex parte Krieger, 7 Mo.App. 367; United States v. Fogel, 22 F.2d 823. (3) The Circuit Court of Cole County erred in finding, in a habeas corpus matter, that petitioner did not have adequate opportunity to prepare and present his defense in the trial court. State v. Stucker, 180 S.W.2d 719, 352 Mo. 1056; State v. Sherry, 64 S.W.2d 238; State v. Davis, 161 S.W.2d 973; State v. Thompson, 42 S.W. 949, 141 Mo. 408; State v. Smith, 59 S.W.2d 722; State v. Blitz, 71 S.W. 1027, 171 Mo. 530; Sec. 18(a), Art. I, Const. of Mo. 1945; 22 C.J.S., sec. 479b, p. 737; 22 C.J.S., sec. 482, pp. 738, 741, 742; Sec. 4042, R.S. 1939; State v. Lambert, 262 S.W. 58; State v. Jackson, 48 S.W.2d 936; Hawk v. Olsen, 326 U.S. 271. (4) The Circuit Court of Cole County, on a habeas corpus hearing, erred in considering facts which were questions for appeal. In re Edwards, 106 F.2d 537; McIntosh v. White, 21 F.2d 934; Cardigan v. Biddle, 10 F.2d 444; State v. Davis, 161 S.W.2d 973; Ex parte Dixon, 52 S.W.2d 181. (5) Jurisdiction of a court of record to hear habeas corpus matters are conferred upon the court by Section 1591, R.S. 1939. Sec. 1591, R.S. 1939. (6) The Circuit Court of Newton County erred in discharging a petitioner on a habeas corpus proceeding, for the reason that it felt that the Cole County Circuit Court had acted outside of its jurisdiction. Young v. Parker, 195 S.W.2d 743; Ex parte Thornberry, 254 S.W. 1087, 300 Mo. 661. (7) The Circuit Court of Newton County erred in releasing and discharging petitioner on a habeas corpus proceeding, when such action constituted the changing, altering or suspending of a sentence previously imposed. Ex parte Cornwall, 122 S.W. 666, 223 Mo. 259; Ex parte Thornberry, 254 S.W. 1087, 300 Mo. 661; Bugg v. United States, 140 F.2d 848; Sec. 1660, R.S. 1939; Flansburg v. Kaiser, 184 S.W.2d 1004; Williams v. Kaiser, 65 S.Ct. 363, 323 U.S. 471, 89 L.Ed. 398; Young v. Parker, 195 S.W.2d 743.
Gene Frost, Edw. E. Mansur, Jr., and Sam S. Haley for respondents.
(1) The motion to dismiss the writ of certiorari in the case of State ex rel. Stewart v. Smith, No. 40345, on the grounds that relator therein does not have the legal capacity to sue in the case herein, because he was not a party to nor officially interested in the case in Newton County, is well taken, and the point is here renewed. State v. Stroemple, 199 S.W.2d 913; State ex rel. Shartel v. Skinker, 324 Mo. 955; State ex rel. Walker v. Dobson, 135 Mo. 1; State ex rel. Barker v. Wurdeman, 254 Mo. 561; State ex rel. Gentry v. Westhues, 315 Mo. 672. (2) On a hearing by the Supreme Court of the State of Missouri on certiorari reviewing the judgment and order of an inferior court made in a habeas corpus case, the court will inquire only as to whether the inferior court, whose judgment and order is complained of, had jurisdiction of the person and of the subject matter, and will not inquire as to whether the inferior court erroneously decided the case. State ex rel. Gentry v. Westhues, 315 Mo. 672; Ex parte Jilz, 64 Mo. 205; State ex rel. Hiett v. Simmons, 112 Mo.App. 535; State ex rel. Shartel v. Skinker, 324 Mo. 955; State ex rel. v. Broaddus, 245 Mo. 123; State ex rel. Renner v. Alford, 343 Mo. 576; State ex rel. Parker-Washington Co. v. St. Louis, 207 Mo. 354. (3) Denial of due process, even though not apparent on the face of the record proper in a criminal case, is reviewable in a habeas corpus proceeding, said denial going to the question of jurisdiction. Williams v. Kaiser, 65 S.Ct. 363. (4) While as a general rule matters of appeal will not be considered in a habeas corpus action, a denial of constitutional rights will be considered, even though the same question could have been presented and adjudicated in an appeal. Williams v. Kaiser, supra, l.c. 367. (5) The right to counsel is not a mere formal one to be satisfied by merely assuring that an attorney has been offered to accused. The Constitutions guarantee not only that an attorney be present in court at the time the accused is on trial, if he so desires, but that the attorney be afforded every opportunity to prepare the case in the defense of the accused, and to present it in its most favorable light at the trial. The law securing to one (accused) the assistance of counsel did not intend a barren right, for what avail would the privilege of counsel be if on the moment, without opportunity of studying the case, he would be forced to trial. State v. Jackson, 344 Mo. 155, 130 S.W.2d 395; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; 16 C.J.S., sec. 591, p. 1187; 84 A.L.R. 544; Poindexter v. State, 191 S.W.2d 445; Commonwealth v. O'Keefe, 298 Pa. 169, 173, 148 A. 73; State v. Ferress, 16 La. Ann. 424; People v. Shiffman, 350 Ill. 243, 182 N.E. 760; North v. People, 139 Ill. 81, 28 N.E. 966; State v. Pool, 50 La. Ann. 449, 23 So. 503; State v. Collins, 104 La. 629, 29 So. 180; People v. Kurant, 331 Ill. 470, 163 N.E. 411; State v. Simpson, 38 La. Ann. 23; McArver v. State, 114 Ga. 514, 40 S.E. 779; Reliford v. State, 140 Ga. 777, 79 S.E. 1128; Dunmas v. State, 16 P.2d 886; Blackman v. State, 76 Ga. 288; Brown v. State, 120 Ga. 145, 47 S.E. 543; Noel v. State, 17 Okla. Crim. Rep. 308, 188 P. 688.
These two consolidated certiorari proceedings were instituted in this court by the acting Warden of the State penitenitary to review, respectively: the record in a habeas corpus proceeding brought by Charles Edgar Cory last year in the circuit court of Cole county, of which the respondent Hon. Sam C. Blair is judge; and the record in another habeas corpus proceeding brought by the same Cory this year in the circuit court of Newton county, of which the respondent Hon. Emory E. Smith is judge. Both habeas corpus proceedings involved the legality of the conviction of Cory on a felony charge, and were conflicting in result. The instant certiorari proceedings challenge the validity of both of them; and seek recapture of the convict.
At the time of the first habeas corpus proceeding Cory was confined in the State penitentiary of Missouri under a conviction and sentence of 99 years by a jury in the circuit court of Newton county in February, 1937. The crime there charged was robbery in the first degree by means of a dangerous and deadly weapon, a capital offense, under Sec. 4453. [1] The prosecution was under the habitual criminal act, Sec. 4854, because of three prior felony convictions of the accused in our State and Federal courts. The aforesaid Newton county robbery conviction was affirmed by this court on the record proper, in December, 1938, State v. Cory, 123 S.W.2d 541. Matters of exception were not considered since no bill of exceptions had been brought up.
Nearly eight years thereafter Cory brought the habeas corpus proceeding first mentioned above in Cole county, against the then acting Warden of the State penitentiary, which is located in that county, seeking his discharge on the ground that the Newton county robbery conviction was invalid. No notice of that proceeding was ever given to any officer of Newton county. After a trial in October the respondent Judge Blair, on December 7, 1946, found and adjudged that the robbery conviction was wholly void and illegal because Cory had been denied due process of law therein, in that he had not been accorded an adequate opportunity to prepare and present his defense. Accordingly it was ordered and adjudged that Cory be remanded to the custody of the sheriff of Newton county, there to be dealt with according to law -- meaning that he be held for another trial on the robbery charge.
It appears from an agreed statement of facts in the certiorari proceeding against Judge Smith, that at first he acquiesced in the Cole county habeas corpus proceeding. For three days thereafter, on December 10, 1946, he entered an order reciting the basic facts of that proceeding, and directing the sheriff of Newton county to bring Cory from the penitentiary to that county and there to commit him to the county jail for safe keeping until the further order of the court. The order further directed the Warden to deliver Cory to the sheriff. All this was done.
But on January 23, 1947, Cory instituted the second habeas corpus proceeding mentioned in the beginning, in the Newton county circuit court, alleging he was being restrained of his liberty by the sheriff without warrant, commitment or other process of law; and that he was...
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