State ex rel. Stewart v. Blair

• Court: Missouri Supreme Court
• Writing for the Court: TIPTON
• Citation: State ex rel. Stewart v. Blair, 203 S.W.2d 716, 356 Mo. 790 (Mo. 1947)
• Decision Date: 14 July 1947
• Docket Number: 40276
• 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

203 S.W.2d 716

356 Mo. 790

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

July 14, 1947

Original Proceeding in 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 F.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 F. 811; Williams v. Kaiser, 65 S.Ct. 363, 323 U.S. 471.

Tipton, C.J. All concur, except Ellison, J., who dissents in separate opinion.

OPINION

TIPTON

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, 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 automobile.

We will adopt substantially the respondent's statement of facts in his brief.

On September 16, 1946, the petitioner, Ervin Galloway, filed his petition for a writ of habeas corpus in the circuit court of Cole County, Missouri. His petition alleged that he was unlawfully deprived of his liberty by the warden of the Missouri State Penitentiary by reason of having been convicted on November 3, 1934, in the circuit court of Pettis County, Missouri, of the crime of larceny of an automobile and given the maximum sentence of twenty-five years in the penitentiary, under the habitual criminal act, while at large from the penitentiary under a conditional commutation of a prior sentence of five years which had been imposed upon him under date of November 1, 1930, for first degree robbery by the circuit court of Jackson County, Missouri. He alleged that the Pettis County circuit court sentence was unlawful and illegal because he had not been discharged from the prior sentence imposed upon him by the circuit court of Jackson County, either by pardon or upon compliance with the sentence, at the time he was charged and convicted under the habitual criminal act.

Issuance of the writ was waived and relator filed his return to the petitioner's petition, alleging that relator has lawful custody and restraint of petitioner under the judgment of the circuit court of Pettis County. A certified copy of that judgment was attached to his return.

The petitioner's exhibits and evidence showed that he was released upon conditional commutation of the sentence imposed upon him by the circuit court of Jackson County under date of August 14, 1933, which required that he make reports thereunder every sixty days up to October 31, 1935, and that the same was revoked by the governor of Missouri on November 28, 1934, subsequent to the judgment and sentence of the circuit court of Pettis County.

The relator introduced in evidence a certified copy of the information filed against the petitioner in the circuit court of Pettis County, charging him with larceny of an automobile, the prior conviction in the circuit court of Jackson County, and his imprisonment under said sentence from December 4, 1930, to August 14, 1933, which alleged that on that date he was "lawfully discharged . . . upon lawful compliance with said judgment and sentence aforesaid," and a certified copy of the judgment and sentence of the circuit court of Pettis County.

The respondent seeks to justify his ruling by contending that our case of State v. Brinkley, 354 Mo. 1051, 193 S.W. 2d 49, decided March 11, 1946, overruled our case of State v. Asher, 246 S.W. 911, decided December 9, 1922, and, therefore, that at the time the petitioner was tried in the circuit court of Pettis County in 1934, under our rulings in the Asher case, he was deprived of his defense that he was not subject to prosecution as an habitual criminal, since at that time he was at large under a parole from the governor. He also contends that his right to this defense was restored when the Brinkley case overruled the Asher case, and that the ruling in the Brinkley case is retroactive to the Asher case and has the effect of a declaration that the ruling in the Asher case never was the law. Under these circumstances, respondent contends that habeas corpus is the proper remedy to prevent a miscarriage of justice.

The Brinkley case did not overrule the Asher case. They are distinguishable on facts. The facts on this point, as stated in the Brinkley case, are as follows:

"In prosecuting appellant in this case under the habitual criminal statute, Sec. 4854, the State alleged and proved: that he had previously been convicted on September 21, 1942 of the crime of larceny from the person of an amount less than $ 30 (a felony under Secs. 4460 and 4864) and sentenced to the St. Louis City workhouse for five months; that he was paroled by the court on November 25, 1942; and was still out on that parole when he committed the instant homicide on September 12, 1943." 193 S.W. 2d l.c. 57.

In ruling that point, we said:

"But the courts do not have the pardoning power; and the parole in the instant case was judicial and statutory." 193 S.W. 2d l.c. 58.

The effect of the opinion in the Brinkley case was that a parole by a court is not equivalent to a pardon and, therefore, a defendant who is out on a statutory court parole cannot be punished under the habitual criminal act.

The facts in the Asher case were that the defendant was convicted as an habitual...