State v. Latshaw
Decision Date | 09 February 1922 |
Docket Number | No. 23319.,23319. |
Citation | 291 Mo. 592,237 S.W. 770 |
Parties | STATE ex rel. ORR, Pros. Atty., v. LATSHAW, Judge. |
Court | Missouri Supreme Court |
Cameron L. Orr, of Kansas City, pro se.
Ralph S. Latshaw, of Kansas City, pro se.
This is an original proceeding for a writ of prohibition. Relator is the prosecuting attorney of Jackson county and respondent is judge of division No. 1 of the criminal court of Jackson county. The remedy sought is to prevent respondent from arresting and setting aside a judgment and sentence entered in a cause entitled "State of Missouri v. Wilbur J. Hammer," begun in the aforesaid criminal court. Upon the filing of the petition a preliminary rule was granted as prayed. Respondent made no return, but has entered his appearance, and filed a statement, brief and argument in which it is conceded that relator's statement of the record in the said cause is substantially correct.
Briefly, the facts are as follows: On August 26, 1921, at the April term, 1921, of the criminal court of Jackson county, relator filed an information against one Wilbur J. Hammer, charging him with the "detestable and abominable crime against nature." On the same day said Hammer, being arraigned, entered a plea of guilty to the said charge, before respondent, who accepted the said plea and sentenced him to a term of five years in the state penitentiary. According to the record no motion for new trial or in arrest of judgment seems to have been filed during the said April term, 1921. Thereafter, on the 25th day of October, 1921, after the expiration of the April term, and during the September term, 1921, of said criminal court, the said Hammer filed a motion to set aside the sentence imposed, and to grant him a new trial, which motion is as follows:
On October 26, 1921, the said motion was taken up and submitted to respondent, who made the following order, to wit:
Relator, alleging that the purpose and intention of respondent is in excess of his jurisdiction, has applied to this court for our writ of prohibition to prevent respondent frm assuming jurisdiction and carrying into effect the order so made.
I. Respondent contends that the writ of prohibition will not be granted where adequate relief can be had on appeal or writ of error. As an abstract proposition of law this doctrine is not to be questioned. However, it has no application in the case at bar. Here the paramount issue is the question of respondent's jurisdiction. If he had jurisdiction to set aside the judgment and sentence pronounced against Hammer, then an appeal or writ of error might lie. But the authorities cited by respondent are not pertinent to the real question involved. Section 4099, R. S. Mo. 1919, cited by respondent, assumes that the court has jurisdiction to arrest the judgment. Or, if it be viewed from the angle of an appeal, it contemplates that the appeal be prayed for by the prosecuting attorney. Clearly it is not relevant. The remaining authorities cited all relate to controversies wherein the trial court had jurisdiction of the subject-matter of the action, and lay down the rule that prohibition will not lie to prevent the exercise of such jurisdiction.
However, if respondent lacked jurisdiction, or assumed authority in excess of his jurisdiction, prohibition is the proper remedy. State ex rel. Tuller v. Seehorn, 246 Mo. loc. cit. 585, 151 S. W. 724; State ex rel. Judah v. Fort, 210 Mo. loc. cit. 525, 109 S. W. 737; State ex rel. Knisely v. Board of Trustees of Y. W. C. A., 268 Mo. loc. cit. 168, 186 S. W. 680; State ex rel. McCurdy v. Slover, 126 Mo. loc. cit. 655, 29 S. W. 718; State ex rel. United Rys. Co. v. Wiethaupt, 238 Mo. 155, 142 S. W. 323. As expressed in State ex rel. Tuller v. Seehorn, supra:
"It is the recognized law of prohibition that the writ will lie to prevent the exercise of judicial power in a case where there is a want of jurisdiction in the court to exercise any judicial authority, or where the court is acting in excess of its jurisdiction in a case rightfully before it."
Bearing this well-established principle in mind, we shall proceed, in paragraph 111 following, to discuss the question of respondent's jurisdiction. Before so doing, however, we feel called upon to dispose of another point raised by respondent, which we shall next consider.
II. Respondent claims that the granting of the writ of prohibition will be violative of our rule 32 (228 S. W. x) of section 23 of article 6 of the Constitution of Missouri, and of section 2058, R. S. Mo. 1919, urging that the circuit court has the exercise of superintending control over criminal courts of this state.
With respect to our rule 32, the time for respondent to have invoked that as a reason for the denial of the writ was upon the filing of relator's application for the writ, notice of which was...
To continue reading
Request your trial