State v. Montgomery

• Decision Date: 11 July 1927
• Docket Number: No. 27840.,27840.
• Citation: 297 S.W. 30
• Parties: STATE ex rel. GENTRY, Atty. Gen., v. MONGOMERY, Judge, et al.
• Court: Missouri Supreme Court

297 S.W. 30

STATE ex rel. GENTRY, Atty. Gen., v. MONGOMERY, Judge, et al.

No. 27840.

Supreme Court of Missouri, in Banc.

July 11, 1927.

Certiorari by the State, at the relation of North T. Gentry, Attorney General, to review an order made by John D. Montgomery, Judge of the Twelfth Judicial Circuit, and entered by J. L. Kendrick, Clerk of the Circuit Court of Chariton County, in an action by the State against Tom Horton. Writ quashed.

North T. Gentry, Atty. Gen., and Smith B. Atwood, Asst. Atty. Gen., for relator.

Fred & Gilbert Lamb, of Salisbury, for respondents.

GANTT, J.

Certiorari instituted by the state, at the relation of the Attorney General. The writ was directed to Hon. John E. Montgomery, as judge, and J. L. Kendrick, as clerk, of the circuit court of Chariton county. They made return to the writ. The facts are as follows:

Tom Horton was tried on an indictment in two counts in the circuit court of Chariton county before Hon. John E. Montgomery and a jury. He was found guilty of the offense of possessing liquor on the first count, and of the offense of possessing a still on the second count, and his punishment fixed on each count at a fine of $300 and imprisonment in the county jail for 180 days. A constitutional question was in the record, and an appeal was taken to this court. The judgment was affirmed as to the first count and reversed as to the second. Our mandate was duly certified to the clerk of the circuit court of Chariton county. The case is reported in 278 S. W. 661. Thereafter and during the November term, 1926, the respondent, Hon. John E. Montgomery, made, and J. L. Kendrick, clerk of said court, entered, an order of record granting to defendant Horton a stay of execution on the fine and a parole on the jail sentence. The relator's contention is stated as follows:

"It is the contention of the Attorney General that the circuit court of Chariton county, Mo., had no further jurisdiction in the case of State v. Tom Horton after the allowance of defendant's appeal to the Supreme Court of Missouri, and that said court had no power even after affirmance of said judgment and the receipt of the mandate of said Supreme Court to make any orders, judgments, or decrees except such as may have been embraced in the judgment and mandate of the Supreme Court."

By the statute the trial court is denied the right to grant a parole pending an appeal. Section 4167, R. S. 1919.

Did the trial court have the authority to parole the defendant on receipt of our mandate affirming its judgment? This is the only question for solution.

In Ex parte Foister, 203 Mo. 687, 102 S. W. 542, we held the trial court was without authority to parole a defendant convicted of a felony after the judgment had been affirmed by this court. This ruling rests on sections 4095 and 4096, R. S. 1919, expressly directing this court to have its marshal execute all sentences pronounced in felony cases. No such direction is given in a misdemeanor case. The judgment in a"misdemeanor case on affirmance is executed by the circuit court. However, it is argued by relator that a judgment affirmed in this court in a misdemeanor case becomes a judgment of this court, and the circuit court is the agent of this court in executing the sentence pronounced. Section 4109, R. S. 1919. It is further argued that, being an agent of this court, it is without power to grant a parole and must execute the sentence according to the punishment assessed on the trial.

The granting of a parole by the circuit courts and judges in this state is in no sense a part of the trial of the cause. The trial is for the determination of the guilt or innocence of the defendant. After a defendant is convicted of a misdemeanor the trial court may parole him.

In State ex rel. Browning v. Kelly, 309 Mo. loc. cit. 472, 274 S. W. 731, we held that the granting of a parole, whether it be deemed a conditional suspension of the sentence or a conditional parole, is no part of the trial of the cause which culminates in a judgment of...