State v. Breuer
| Decision Date | 02 June 1924 |
| Docket Number | No. 25232.,25232. |
| Citation | 264 S.W. 1 |
| Parties | STATE ex rel. MEININGER v. BREUER, Circuit Judge, et al. |
| Court | Missouri Supreme Court |
James Booth, of Pacific, Cole & Jenny, of Union, and Harvey & Baer and Anderson, Gilbert & Wolfort, all of St. Louis, for relator.
C. O. Pearcy, of St. Louis, for respondent Sidener.
Jesse W. Barrett, Atty. Gen., Henry Davis, Asst. Atty. Gen., and Allen May, Sp. Asst. Atty. Gen., for respondent Breuer.
Prohibition. In March, 1923, relator was convicted of embezzlement and sentenced to the penitentiary, and appealed. While this case was pending on appeal, the same circuit court took steps to put relator on trial on indictments for felony which had been found before his conviction for the embezzlement. He thereupon began this proceeding in prohibition. The question presented is whether the circuit court has jurisdiction to try relator for the Other offenses in question during the pendency of his appeal.
Relator contends, in legal effect, that (1) section 3697, R. S. 1919, deprives the circuit court of jurisdiction to proceed in the cases on which it was about to try relator;
(2) that whatever is thought of this construction of the statute it has been worked into its words by its subsequent re-enactments; (3) that this construction is supported by other enactments; and (4) prohibition is the appropriate remedy.
I. This court has never held that section 3697 deprives a circuit court of jurisdiction to put one previously convicted and sentenced upon trial for an offense committed prior to such previous sentence, but has heretofore (Ex parte Allen, 196 Mo. loc. cit. 232, 95 S. W. 415) pointed out the difference between its previous rulings and the ruling sought in this case. It seems appropriate carefully to examine the supposed principle which lies at the root of relator's contentions.
II The doctrine which relator now urges this court to adopt is founded by him upon a construction he gives certain decisions of this court. Chief among these is Ex parte Meyers, 44 Mo. 279. In that case the record (still on file) and the opinion show that Meyers, at the March, 1866, term of the St. Louis criminal court, pleaded guilty to a charge of grand larceny and was thereupon sentenced to two years in the penitentiary. At the May, 1866, term of the same court Meyers was convicted by a jury on a like charge and sentenced to three years in the penitentiary. The second sentence in no way refers to the first, and the trial court made no effort to make the terms cumulative or successive. Meyers was committed to the penitentiary and served more than three years in that institution. In July, 1869, he sued out a writ of habeas corpus, whereby he sought his discharge. In his brief, a single manuscript page, he made the points:
"Conceding that under our statute [now section 3697] a sentence may be by judgment of the court made to commence at a future time or upon the expiration of a former sentence, that statute cannot apply here because (1) it does not appear by the record that the second conviction was before sentence in the first was pronounced as one was on the 31st March and the other on 8th June, 1866; (2) it was the duty of the court pronouncing the sentence to have stated the time when the second conviction should begin," and "no cause is to be brought by construction within a statute when it does not fully come within" it.
Counsel for respondent in that case suggested that the statute applied and of itself made the sentences cumulative, since the record showed a sentence on the first conviction before sentence in the second, but did not show a sentence in the first before conviction in the second case.
In its opinion the court pointed out the error in the assumption that both convictions occurred at the same term, and stated the facts as the record shows them; i. e., that the sentence on the plea of guilty was passed at the March term, 1866, and the conviction on the second charge occurred at the May term, 1866, and concludes: "The prisoner was twice found guilty and sentenced on each finding at different terms." For that reason the court held that chapter 207, § 9, 3. S. 1865 (now section 3697, R. S. 1919) did not apply to the case because:
"This section applies only where a person is convicted of two or more offenses at the same term, and both convictions must take place before the sentence is pronounced in either case."
When this point had been reached, the court had disposed of the statute. The proceeding before it was in habeas corpus, and the question was whether the record showing entitled the warden further to hold petitioner in his custody under the two sentences. Petitioner had served a time in excess of the longest of these. The law then, as now, was settled beyond dispute that in the absence of a statute to the contrary, sentences were not cumulative, even where they might be made so, unless the sentencing court expressly made them so by directing that the subsequent one should commence at a future time determined or determinable with certainty. In the Meyers sentences no sort of effort was made by the trial court to render the sentences cumulative. The court discussed other matters, but finally ruled as follows:
Since the trial court had not attempted to exercise the power to make the sentences cumulative, the court took the right course in disposing of the case on that theory, as it did in the sentence quoted in which its actual ruling appears.
But it may be said that, if the trial court had no jurisdiction to impose the second sentence, that would have entitled Meyers to his discharge, and that put the question of jurisdiction in the second trial into his habeas corpus case, and what the court said was pertinent to that question, and therefore not obiter dictum.
First, this court held (Ex parte Allen, 196 Mo. 226, 95 S. W. 415) that this is not the true construction of the decision in State v. Buck, 120 Mo. 479, 25 S. W. 573, which is founded upon and purports to follow the Meyers Case. It is pointed out in the Allen Case that the ruling in the Buck Case was that to put upon trial one who had previously been convicted and sentenced was error and not a jurisdictional matter. Necessarily this applies to the Meyers Case. The case was so construed in Indiana. Kennedy v. Howard, 74 Ind. 87.
The court in the Allen Case, loc. cit. 231, 95 S. W. 415, ruled that the question was not one of jurisdiction. It said:
The court then approached the question from two different angles, on principle and with reference to a special statute. With respect to the first it said, in part:
It is in this connection that the court discusses the Buck and other cases, with the result already pointed out. Subsequently, it takes up, independently, the discussion of a special statute which it holds applies and constitutes a second answer to petitioner Allen's contention. It therefore appears that the that held not only not has court in a custody different from that of the crimthis final court, and cannot again be put upon trial principle of the decision in Ex parte Meyers denies jurisdiction to try one already convicted and sentenced but has specifically held that the exact contrary is true. Nor has it made a contrary decision in any subsequent case. In so far as that decision holds that the court had jurisdiction to try Buck on the second charge it is supported by practically all the decisions and text-writers on the subject and is opposed by none. The Meyers Case has been widely criticized even as to the rule it is sometimes thought to announce on the subject it had before it, and we are now asked, in effect, to overrule State v. Buck, supra, and Ex parte Allen, and enlarge the scope and effect of the Meyers decision beyond the point at which the Buck Case held it stopped. Before this is done a full reexamination of the Meyers decision ought to be made.
To continue reading
Request your trial