State v. Johnson

Citation138 Mo. App. 306,121 S.W. 780
PartiesSTATE ex rel. SANKS v. JOHNSON et al.
Decision Date12 October 1909
CourtCourt of Appeal of Missouri (US)

The Court of Appeals may issue certiorari to review an order of the county court contracting for the employment of one convicted of the felony of having intercourse with an unmarried female between the ages of 14 and 18 years, in violation of Rev. St. 1899, § 1838 (Ann. St. 1906, p. 1272), and punished by imprisonment in the county jail, notwithstanding Const. Amend. 1884, art. 6, § 5 (Ann. St. 1906, p. 244), providing that in all causes reviewable by the Supreme Court appeals shall lie from the trial court directly to the Supreme Court, and in all such cases it shall exercise exclusive superintending control, and Const. art. 6, § 12 (Ann. St. 1906, p. 218), providing that appeals shall lie to the Supreme Court in cases of felony.

8. CRIMINAL LAW (§ 27)"FELONY""MISDEMEANOR."

Under Rev. St. 1899, § 2393 (Ann. St. 1906, p. 1466), defining "felony" as any offense for which the offender shall be liable to be punished by imprisonment in the penitentiary, etc., and section 2395, defining a "misdemeanor" as any offense punishable by fine or imprisonment in the county jail, or both, one convicted of violating section 1838 (page 1272), providing that one carnally knowing an unmarried female between the ages of 14 and 18 years shall be deemed guilty of a felony, and shall be punished by imprisonment in the penitentiary, or by imprisonment in the county jail or by fine, or both, is convicted of a felony though he is punished by imprisonment in the county jail.

9. CONVICTS (§ 10) — CONTRACTING FOR LABOR — STATUTES.

Rev. St. 1899, § 1791 (Ann. St. 1906, p. 1249), providing that the county court shall have the power to provide for the employment of all persons convicted of a misdemeanor, applies only to persons convicted of a misdemeanor, and the county court, undertaking to provide for the employment of one convicted of a felony, acts in excess of its jurisdiction, and may be controlled by certiorari.

10. CONVICTS (§ 10) — CONTRACTING FOR LABOR — STATUTES.

Rev. St. 1899, §§ 1791-1793 (Ann. St. 1906, p. 1249), empowering the county court to provide for the employment of persons convicted of a misdemeanor, without any specific authority to allow the contractor to take the prisoner out of the custody of the sheriff or jailer, and authorizing the county court to cause all persons serving sentences in the county jail, or who are detained therein for nonpayment of a fine to work on public roads, etc., do not authorize the county court by contract to deprive the sheriff and jailer of the custody of prisoners, and all contracts for the employment of prisoners must be made subject to this restriction.

11. STATUTES (§ 181) — CONSTRUCTION — RESULTS.

The effect and consequences of any proposed construction of the law may be considered in ascertaining the probable intention of the Legislature.

Certiorari by the State of Missouri, on the relation of John H. Sanks, against C. L. Johnson and others, Justices of the County Court of Texas County, to review the action of the county court in contracting for the employment of a prisoner confined in the county jail. Proceedings of the county court annulled.

Dooley, Hiett & Millard and Samuel J. Salyer, for relator. Lamar & Lamar and Hamlin & Seawell, for respondents.

NIXON, P. J.

This is an action by the state of Missouri, at the relation of John H. Sanks, prosecuting attorney of Texas county, against the Texas county court. The record in this case shows that at the May, 1908, term of the Texas county circuit court, one Robert Pipkin was tried and convicted on the charge of having had sexual intercourse with one Ellen Bailey, an unmarried female of previous chaste character, between the ages of 14 and 18 years, and his punishment was by the jury assessed at three months' imprisonment in the county jail of said county, and that he pay the costs of said prosecution, amounting to $306,30; that on appeal to the Supreme Court of the state of Missouri the judgment against him was affirmed. Subsequently, a capias execution was duly issued from the Texas circuit court to the sheriff of that county, directing him to apprehend and confine the said Robert Pipkin in the Texas county jail for a term of three months, and to collect the amount of costs taxed in said case. Said Pipkin was apprehended and committed to the common jail of Texas county to serve out his sentence.

On the 2d day of August, the county court of Texas county entered into a contract and agreement of record with one Edward Starns, a brother-in-law of the said Pipkin, conditioned that if the said Starns would pay the county court the sum of $308 — the amount of the costs in said case — the county court would make an order releasing the said Robert Pipkin from the custody of the sheriff of said county, and deliver him to the said Edward Starns. The order of the county court is as follows:

"In the Matter of Robert Pipkin.

"Whereas, Robert Pipkin has heretofore been convicted of a misdemeanor and his punishment assessed at three months in the county jail, and whereas, Edward Starns has offered to the court to employ said Robert Pipkin, and has offered to the court the sum of $308 for the work and services of the said Robert Pipkin for the term of three months: It is hereby ordered by the court that the services of the said Robert Pipkin be let to the said Edward Starns for the term of three months, and that the said Robert Pipkin is hereby ordered turned over to the custody of the said Edward Starns to remain in his custody, at the call of this court, for the term of three months from this date.

"Now comes the said Edward Starns and files his bond in the sum of $308, as is above provided, which is by the court approved, which bond is as follows:

"Bond.

"Whereas, Robert Pipkin has been convicted of a misdemeanor, and his punishment assessed at three months in the county jail, and whereas, he has been sentenced to said term, and whereas, his service has been let to, and he has been awarded to, the custody of Edward Starns for three months, for the sum of $308, now, therefore, know all men by these presents that we the undersigned, Edward Starns as principal and ____ as sureties, are held and firmly bound unto the county of Texas in the sum of $308.

"The conditions of the above bond are such that if the said Edward Starns shall pay to the county of Texas on or before three months from this date and shall have the body of the said Robert Pipkin when and where this court may require, then the above obligation to be void, otherwise to remain in full force.

                                     "Ed. Starns.     [Seal.]
                                     "M. F. Pipkin.   [Seal.]
                                     "P. W. Groce.    [Seal.]
                                     "Robt. Lamar.    [Seal.]
                  "Approved this August 2, 1909
                         "C. L. Johnson, P. J. Co. Court."
                

Afterward, on the 4th day of August, 1909, the sheriff of Texas county, James W. Cantrell, in obedience to the order of the county court, released the said Robert Pipkin from jail, and from his custody, and delivered him, under said contract, to the said Edward Starns. The question presented by this record is whether the county court of Texas county had authority, under the facts shown, to enter into the contract with Edward Starns for the employment of Robert Pipkin, a prisoner, and release him from the custody of the sheriff, under the provisions of section 1791 Rev. St. 1899 (Ann. St. 1906, p. 1249). This section is the only statute upon which the county court relies for its authority to make the contract in question.

Several objections are made to the issuance by this court of the writ of certiorari. It is urged, among others, that the authority of the Texas county court to make the contract for the services of the convict, Robert Pipkin, was discretionary, and that a superior court has no right, by...

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