State v. Westhues

• Citation: 286 S.W. 396
• Decision Date: 06 August 1926
• Docket Number: No. 27320.,27320.
• Parties: STATE ex rel. GENTRY, Atty. Gen., et al. v. WESTHUES, Judge, et al.
• Court: United States State Supreme Court of Missouri

286 S.W. 396

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

No. 27320.

Supreme Court of Missouri, in Banc.

August 6, 1926.

Certiorari by the State, on the relation of North T. Gentry, Attorney General, and another, against Henry J. Westhues, Judge of the Circuit Court of Cole County, and another, to quash judgment of said circuit court in a habeas corpus proceeding. Judgment quashed.

N. T. Gentry, Atty. Gen., and A. M. Meyer, Sp. Asst. Atty. Gen., for relators.

Phil M. Donnelly, of Lebanon, and June R. Rose, of Jefferson City, for respondents.

ATWOOD, J.

Our writ of certiorari was issued on application of relators against respondents, and on record certified to us relators seek to quash the judgment of the circuit court of Cole county, Mo., in the habeas corpus proceeding entitled "Ex parte Ezra Overby."

The application for writ of habeas corpus filed in said court, charges that Ezra Overby is unlawfully confined in the Missouri state penitentiary located in said Cole County, in that there has been no judgment of the circuit court of Pulaski county, Mo., from which county the said Overby was committed, adjudging, ordering, and decreeing that he be confined in the state penitentiary for any term. Attached to the application and filed therewith is a purported copy of the warrant, order, and process of confinement, marked Exhibit A, and a purported copy of all records and proceedings in the office of the clerk of said circuit court relative to Overby's case, marked Exhibit B, all duly certified by the circuit clerk of Pulaski county.

Leslie Rudolph, deputy warden and acting warden of the penitentiary and one of the relators herein, made return to the writ of habeas corpus, stating his authority for holding the said Overby thus:

"That at the March, 1921, term of the circuit court of Pulaski county, Mo., the said Ezra Overby was, by the said court, duly sentenced to the penitentiary of the state of Missouri for a term of 2 years, on a plea of guilty to an information charging the said Ezra Overby with the crime of forgery; that said court, upon application by the said Ezra Overby therefor, granted the said Ezra Overby a parole in the manner prescribed by law, and permitted said petitioner to go at large under said parole.

"That on the 6th day of July, 1925, the said circuit court of Pulaski county, Mo., at the special July, 1925, term of said court, made an order vacating and revoking the said parole theretofore granted to said Ezra Overby by said court, and ordered and adjudged that the said Ezra Overby be taken into custody of the sheriff and delivered to the warden of the penitentiary to serve the sentence theretofore duly imposed upon him by the said court; that duly certified copies of the judgment and sentence rendered and pronounced against the said Ezra Overby in said cause, and the certificate of the circuit clerk of Pulaski county, Mo., showing the order of the said court revoking the parole granted to the said Ezra Overby on said judgment and sentence, are hereto annexed and marked Exhibits A and B, and made a part of this return."

Applicant Overby filed reply to the above return, in which he "admits that he was paroled at the March, 1921, term of the circuit court of Pulaski county, Mo.," but denies that the said Rudolph detains him under Or by virtue of any authority of law, and further denies the substantial allegations of said return, and denies that Exhibits A and B annexed and referred to in said return are true and correct copies of the records of the circuit court of Pulaski county. Further answering, said applicant states:

"That at the March, 1921, term of the circuit court of Pulaski county, Mo., the applicant, Ezra Overby, entered a plea of guilty to an information charging him with forgery; that said circuit court assessed his punishment at 2 years in the state penitentiary, and immediately paroled him, as is shown by the judge's docket of the circuit court of Pulaski county, Mo., for the March term, 1921; that your applicant, Ezra Overby, was not sentenced to the state penitentiary for a term of 2 years, or for any other term, by said court and no judgment was entered of record or pronounced against him, and that the records of the circuit court of Pulaski county, Mo. do not show that the said Ezra Overby was sentenced to the penitentiary, nor that there was any judgment entered against him, nor do said records at said term of court show that said Ezra Overby was granted allocution as required by law in such cases; and your applicant specifically denies that Exhibit A attached to and made a part of the answer filed by the Attorney General in behalf of the said Leslie Rudolph herein is a true and correct copy of the records of the circuit court of Pulaski county, Mo., but avers the facts to be that, if the said Leslie Rudolph is in the possession of such a record as Exhibit A, said Exhibit A was prepared and fixed up by the circuit clerk of Pulaski county, Mo., under the direction of the prosecuting attorney of said county without any record of the circuit court of said county to base it on, and that said Exhibit A is not a true and correct copy of the judgment and sentence in this matter for the reason that said records of Pulaski county, Mo., do not show any judgment or sentence in this matter, and that said Exhibit A is a false and fraudulent record and is in fraud of the rights of this applicant."

At the trial it developed that Exhibit B attached to the application, and not Exhibit A attached to the return, is a true and correct copy of the circuit court records of Pulaski county in the case of State of Missouri v. Ezra Overby, and that the purported copy of sentence and judgment marked Exhibit A attached to the application, and the like copy marked Exhibit A attached to the return, are not true copies of any records of the circuit court of Pulaski county. Exhibit B attached to the application and found to be a true and correct copy of said records, is, omitting caption and certificate, as follows:

"State of Missouri, County of Pulaski—ss.:

"In the Circuit Court of Said County.

"Be it remembered that at the term and on the days hereinafter set forth the following, among other, proceedings were had and entered of record, as follows:

"In Circuit Court, March Term, 1921, March 21, 1921. First day of said term, as same appears of record in Court Record Book 5, page 187:

"State of Missouri v. Fred Overby.

412. Forgery.

"Now at this day comes the prosecuting attorney, who represents the pleas of the state, and comes also the defendant in person, and on being demanded of concerning the charges in the information says, that he is guilty as charged. Whereupon it is considered by the court that defendant is guilty as confessed, and his punishment is assessed by the court at 2 years in the state penitentiary.

"State of Missouri v. Ezra Overby.

412. Forgery.

"Now at this day comes the prosecuting attorney and recommends to the court, on the agreement of the parties herein and a petition signed by good people of the community wherein said defendant lives and the good conduct of said defendant since his apprehension, that he be paroled. Whereupon said defendant is by the court paroled.

"In the Circuit Court, March Term, 1921. First day's proceedings, as the same appears on record in Judge's Docket No. 6, page 56:

"State of Missouri v. Ezra Overby.

412. Forgery.

"1. Defendant pleads guilty punishment assessed at 2 years in state penitentiary.

"1. Paroled.

"In the Circuit Court, July Special Term, 1925. First day's proceedings, as the same appears on record in Circuit Court Record 6, at page 186:

"State of Missouri v. Ezra Overby.

412. Forgery.

"Now at this day it is ordered by the court that the parole heretofore, at the March term, 1921, of this court, granted to Ezra Overby, be and the same is hereby terminated. Whereupon it is ordered that execution issue against said defendant, and that the sheriff apprehend said defendant and deliver him to the warden at the state penitentiary, there to be kept in compliance with the sentence and judgment of this court heretofore rendered at the March term, 1921.

"In the Circuit Court, July Special Term, 1925. First day's proceedings, as the same appears on record in Circuit Court Record 6, at page 187:

"State of Missouri v. Ezra Overby.

412. Forgery.

"Now at this time it is ordered by the court that J. W. Wyrick, sheriff of Pulaski county. Mo., be and is hereby allowed one guard to assist in conveying Ezra Overby to the state penitentiary."

On hearing the habeas corpus proceeding, Judge Westhues, one of the above respondents, ordered and adjudged that the said Ezra Overby be forthwith discharged from imprisonment and detention in the Missouri state penitentiary.

I. No appeal lies in habeas corpus (In re Webers, 275 Mo. 677, loc. cit. 683, 205 S. W. 620), and this court has jurisdiction to grant certiorari (State ex rel. v. Wurdeman, 254 Mo. 561, loc. cit. 568, 163 S. W. 849), and review the record as to jurisdictional matters and errors appearing on the face of the record which cannot be reached by appeal or writ of error (State ex rel. v. Shelton, 154 Mo. 670, loc. cit. 691, 55 S. W. 1008, 50 L. R. A. 798; State ex rel. v. Mosman, 231 Mo. 474, loc. cit. 482, 133 S. W. 38).

II. The application for writ of habeas corpus was...