State v. Collins

• Decision Date: 12 February 1910
• Citation: 225 Mo. 633,125 S.W. 465
• Parties: STATE v. COLLINS.
• Court: Missouri Supreme Court

125 S.W. 465

225 Mo. 633

STATE v. COLLINS.

Supreme Court of Missouri, Division No. 2.

February 12, 1910.

1. CRIMINAL LAW (§ 996) — JUDGMENT — CORRECTION NUNC PRO TUNC.

Where defendant pleaded guilty to a charge of larceny from the person in the nighttime, and the judgment by misprision of the clerk read that for his offense of larceny from the "party" in the nighttime, etc., he should be imprisoned, the court was authorized to change the word "party" to "person" to correct the judgment nunc pro tunc, though the case was pending in the Supreme Court on writ of error or appeal.

2. CONSTITUTIONAL LAW (§ 43) — WHO MAY RAISE CONSTITUTIONAL QUESTION.

Rev. St. 1899, § 2818 (Ann. St. 1906, p. 1623), authorizes the court or judge thereof in vacation to terminate a parole without notice to the prisoner by directing the clerk to deliver to the sheriff a certified copy of the sentence with a certificate that such person has been paroled and his parole terminated. Held that, where accused accepted a parole under such section he could not, on being rearrested, on revocation of the parole, claim that so much of the statute as authorized such rearrest and imprisonment without a hearing was unconstitutional.

3. PARDON (§ 2) — PAROLE — STATUTES.

Rev. St. 1899, § 2818 (Ann. St. 1906, p. 1623), providing for the parole of prisoners and the termination thereof, without further hearing, in the discretion of the court or judge granting the same, is constitutional.

Error to St. Louis Circuit Court; Chas. Claflin Allen, Judge.

John Collins was convicted of larceny from the person in the nighttime, and he brings error. Affirmed.

Wm. E. Fish, for plaintiff in error. E. W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

GANTT, J.

On February 11, 1909, an information duly verified was filed in the office of the clerk of the circuit court of the city of St. Louis charging the defendant with the crime of larceny from the person of one D. C. McMahon in the nighttime. On May 3, 1909, the said defendant was duly arraigned and pleaded guilty as charged in the information and the court assessed his punishment at two years in the penitentiary. Judgment was accordingly pronounced and thereafter the defendant, upon his application, was paroled. It appears that the clerk of the court in entering the judgment and sentence by inadvertence or misprision wrote the word "party" instead of "person," thus causing the judgment to read: "It is therefore considered by the court that John Collins for his offense of larceny from the `party,' in the nighttime, and in pursuance of his plea of guilty thereto, be imprisoned," etc. On May 26, 1909, defendant's parole was revoked, and on June 26th his motion to set aside the revocation was overruled. On July 15, 1909, the defendant applied for and obtained a writ of error from the clerk of this court, and this cause is now here on the said writ and the return thereto. Afterwards on August 23, 1909, the circuit court caused to be entered an order nunc pro tunc correcting the said judgment entry so as to cause the same to read: "That the said John Collins for his offense of larceny from the person in the nighttime, and in pursuance of his plea of guilty thereto, be imprisoned in the penitentiary of this state for the term of two years, and he pay the costs of this prosecution and stand committed until this sentence be complied with."

The plaintiff in error has filed no brief and assigns no errors in this court, but, as in duty bound, we have read the entire record, and we find the information is one based upon section 1901, Rev. St. 1899 (Ann. St. 1906, p. 1301), and is entirely satisfactory. The only possible error of which the plaintiff in error could have complained was the insertion in the entry of the judgment of the word "party" instead of "person," but when the attention of the court was called to this inadvertence by motion, it caused the record to be corrected nunc pro tunc. The power and authority of the circuit court to correct this record by nunc pro tunc entries is fully established notwithstanding the case may be pending in this court on appeal or writ of error. State v. Gordon, 196 Mo., loc. cit. 196, 95 S. W. 420; State v. Eaton, 191 Mo. 154, 89 S. W. 949. The record entries in this cause in the circuit court and the information afforded ample basis for the nunc pro tunc order made in this case. As corrected, the judgment is in approved form and contains all the recitals essential to a valid judgment. No error appearing in the case the judgment is affirmed.

In his application for a writ of habeas...