State ex rel. Taylor v. Blair

• Decision Date: 12 April 1948
• Docket Number: 40690,40691,40692
• Parties: State of Missouri, at the Relation of J. E. Taylor, Attorney General, Relator, v. Sam C. Blair, Judge of the Circuit Court of Cole County, Missouri
• Court: Missouri Supreme Court

210 S.W.2d 1

357 Mo. 586

State of Missouri, at the Relation of J. E. Taylor, Attorney General, Relator, v. Sam C. Blair, Judge of the Circuit Court of Cole County, Missouri

Nos. 40690, 40691, 40692

Supreme Court of Missouri

April 12, 1948

Original Proceeding in Certiorari.

RECORDS OF CIRCUIT COURT QUASHED.

Records of Circuit Court 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 informations in the trial courts are sufficient and complete upon their face to charge the defendants 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 in habeas corpus proceedings is without authority of law to reduce the sentences imposed by the trial courts. Secs. 4453, 4594, R.S. 1939; State ex rel. Stewart, Acting Warden, v. Blair, 203 S.W.2d 716.

S. W. James, Jr., for respondent.

(1) There being no statute or rule of court fixing the time limit for filing application for writ of certiorari, the relator is entitled to a reasonable length of time after the final judgment complained of to make application for the writ. The applications herein having been filed in this court in Case No. 40690 approximately seven months, in Case No. 40691 approximately one year, and in Case No. 40692 approximately one year and four months, after the respective dates of final judgment in the circuit court, and after execution of the judgments, they were filed too late and the writs of certiorari granted herein should be quashed by this court by reason of laches on the part of the relator in making application therefor. State ex rel. Kennedy v. Hogan, 306 Mo. 580, 267 S.W. 619; State ex rel. Hancock v. Falkenhainer, 316 Mo. 651, 291 S.W. 466; State ex rel. Berkshire v. Ellison, 287 Mo. 654, 230 S.W. 970; State ex rel. Scott v. Trimble, 308 Mo. 123, 272 S.W. 66; State ex rel. Al G. Barnes Amusement Co. v. Trimble, 318 Mo. 274, 300 S.W. 1064. (2) The court in a habeas corpus proceeding may accept evidence in support of the records in the case, but not to impeach the records. Flansburg v. Kaiser, 184 S.W.2d 1004; Young v. Parker, 195 S.W.2d 743; Sisk v. Wilkinson, 305 Mo. 328, 265 S.W. 536. (3) The Habitual Criminal Statute, Sec. 4854, Revised Statutes of Missouri, 1939, is highly penal and should be strictly construed against the state, and liberally for the defendant. State v. Young, 345 Mo. 407, 133 S.W.2d 404; State v. Donnell, 353 Mo. 878, 184 S.W.2d 1008; 16 C.J., sec. 3150, p. 1399. (4) No person is to be made subject to such penal statutes by implication, and when doubts arise concerning their interpretation, such doubts are to weigh only in favor of the accused. Anthony v. Kaiser, 169 S.W.2d 47; State v. Taylor, 133 S.W.2d 336, 345 Mo. 325; State v. Lloyd, 7 S.W.2d 344, 320 Mo. 236. (5) The instrument termed "conditional commutation of sentence" or "conditional pardon" contains all of the elements of an executive parole, as the prisoner is not relieved from the stigma of his sentence, nor is he finally discharged from further serving the sentence. 31 Words & Phrases, Perm. Ed., pp. 102-104; 46 C.J., sec. 6, p. 1183; 46 C.J., secs. 55-64, pp. 1200-1204; State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49; State ex rel. Stewart v. Blair, 203 S.W.2d 717. (6) Under the authorities a convict is still under sentence under the provisions of Sec. 9226, Revised Statutes of Missouri, 1939, but is discharged under the provisions of Sec. 4854, Revised Statutes of Missouri, 1939, when at large from the penitentiary under "conditional commutation" of his sentence, or "conditional parole". Herring v. Scott, 142 S.W.2d 670; State ex rel. Stewart v. Blair, 203 S.W.2d 716. (7) The same statute as Sec. 4854, Revised Statutes of Missouri, 1939, has been construed to mean the word "discharged" as used in the statute requires a complete discharge. Wood v. People, 53 N.Y. 511.

OPINION

Leedy, C.J.

The State, at the relation of the Attorney General, instituted in this court three separate proceedings in certiorari to review the records of the Circuit Court of Cole County (of which the respondent Hon. Sam C. Blair is judge) in certain habeas corpus proceedings lately pending therein, and severally brought by Ferguson, Slyker and Debert (hereinafter referred to as petitioners) to effect their release from the Missouri Penitentiary. On the merits there is but one point involved, and as it is common to all of the cases, the three proceedings have been consolidated, and will be disposed of in one opinion.

Each petitioner had been convicted and sentenced under the Habitual Criminal Act, Sec. 4854, R.S. '39 and Mo. R.S.A.; Ferguson and Debert to life imprisonment for first degree robbery, and Slyker to ten years for forgery. The point in controversy is whether the petitioners were amendable to the provisions of that Act. It was made to appear (and it is undisputed) that when the offenses for which they were subsequently convicted were committed, each petitioner was at large from the penitentiary under a conditional commutation of sentence (extended by the Governor), and the informations so alleged. In this state of facts, it was their contention that they had not been "discharged, either upon pardon or upon compliance with the [previous] sentence," the condition specified by Sec. 4854 as that upon which one subsequently convicted may be subjected to the more severe penalties provided by that section. It was contended, for this reason alone, that the sentences under the Habitual Criminal Act were unauthorized. As no other question arises as to its applicability, it is unnecessary to further develop the facts. The respondent judge sustained petitioners' contention, and adjudged each of the challenged sentences to be erroneous as to time. Purporting to act under Sec. 1660, he proceeded to resentence them (as of the date of the entry of the original judgments) to terms in the penitentiary as follows: Ferguson, 12 1/2 years, Debert, 7 years, and Slyker, 7 years, 3 months. However, the judgments expressly denied their prayers to be discharged from the custody of the warden. This is understandable as to Debert, who was held to complete previous sentences, but in the Ferguson and Slyker cases the record negatives the idea of any such reason.

The precise question here involved was determined adversely to petitioners' contention in the very recent case of State ex rel. Stewart v. Blair, J., 356 Mo. 790, 203 S.W. 2d 716 decided en banc July 14, 1947, one judge dissenting. The Stewart case was decided after the judgments here challenged were rendered, so the respondent judge did not have the benefit of that precedent. Every argument here advanced is answered by that decision. We are satisfied with the reasoning and result there reached, and adhere to it. The respondent judge having exceeded his authority in holding that petitioners were not subject to the Habitual Criminal Act, the record thereof and judgment based thereon should be quashed, unless there is merit in respondent's motion to quash the instant certiorari proceedings, a question we now proceed to consider.

The dates of the judgments in petitioners' habeas corpus cases were as follows: In Ferguson's, on June 7, 1946; in Slyker's, on October 11, 1946, and in Debert's on March 17, 1947. It appears that at least in Debert's case (in all of them the Attorney General appeared as counsel for the warden) the respondent judge, at the time judgment was entered, took this position, as shown by the record certified here:

"The Court: If you have any serious doubts as to my ruling, I wish you would take this to the Supreme Court on certiorari and let them decide whether I am right or wrong in my theory. . . . This man will be in the penitentiary for some time, and I would like to have this point resolved. It is the order of this court that you take this up."

Notwithstanding this suggestion and direction, the fact is that certiorari was not applied for until October 9, 1947, on which date all three applications were filed, and the writs subsequently issued.

The motion to quash, after pointing out the several dates just mentioned, avers that relator "was guilty of laches in waiting the aforesaid periods of time, and long after the judgments complained of had been entered in the records of the Circuit Court of Cole County, and the terms at which they were rendered had expired, and long after the judgments had in fact been executed, the records of the Missouri State Penitentiary changed to correspond therewith, and two of the petitioners in the Circuit Court, Thomas J. Ferguson, Case No. 40692, and Stephen Slyker, Case No. 40691, had been released and discharged from the penitentiary under the sentences imposed upon them by the respondent, before making his applications for certiorari in said causes." The motion further avers that "by reason of the aforesaid facts and circumstances injustice,...