State v. Wurdeman

• Decision Date: 06 December 1922
• Docket Number: No. 23680.,23680.
• Citation: 246 S.W. 189,295 Mo. 566
• Parties: STATE ex rel. STEVENS v. WURDEMAN, Circuit Judge, et al.
• Court: Missouri Supreme Court

246 S.W. 189

295 Mo. 566

STATE ex rel. STEVENS v. WURDEMAN, Circuit Judge, et al.

No. 23680.

Supreme Court of Missouri, in Banc.

December 6, 1922.

[246 S.W. 190]

Original prohibition by the State, on the relation of Beverly C. Stevens, against G. A. Wurdeman, Judge of the Thirteenth Judicial Circuit, and another. Rule made absolute.

Wood & Teesdale, of St. Louis, for relator.

J. C. Kiskaddon, Asst. Pros. Atty., of Clayton, for respondents.

GRAVES, J.

Original action in prohibition. Respondents are (1) one of the circuit judges of St. Louis county (Thirteenth judicial circuit) and (2) the prosecuting attorney of said county.

Relator, Stevens, has Pending against him some 76 indictments, of which five are yet pending of St. Louis county. All were originally pending in St. Louis county, but upon Ids application all except five were changed in venue to other counties and the city of St. Louis. The five yet pending in St. Louis county were, found on June 22, 1915, whilst the others were found in December, 1914. These indictments charged defendant either with embezzlement and grand larceny or with obtaining money under false pretenses.

Respondent Wurdeman is judge of division No. 2 of the St. Louis county circuit court, and as such has pending before him three of the said five criminal charges filed. June 22, 1915, to wit, Nos. 27689, 27691, and 27693. The relator filed motion for discharge in No. 27689, but for the purpose of this case the particular charge is not material, because in ultimata facts the situation is the same.

Relator charges, in effect, that this cause, as well as others pending, have been "continued 22 times during a Period of seven years, wherein which period there elapsed 19 terms of the circuit court of St. Louis county; that all these continuances were without relator's application or consent, and never because of time to try said cause." This is met by a demurrer, presently to be stated. Evidenly counsel were trying to state facts and make an issue of law, so that, in addition to the averment supra, the petition says:

"Relator states that he had not previously applied for discharge for the following reasons: That on December 13, 1914, the grand jury in and for St. Louis county, Mo., found and returned an indictment for embezzlement against the defendant; that thereafter a plea of `not guilty' was entered, and on January 27, 1915, a change of venue was granted to the defendant to the circuit court of the city of St. Louis, cause being indictment No. 193, February term, 1915; that thereafter, on the 17th day of May, 1913, a trial was had and a verdict rendered, finding the defendant guilty of the offense charged, and assessing his punishment at three years in the penitentiary; that sentence then about to be pronounced was deferred at the suggestion of one Hiram Moore, assistant circuit attorney; that on the 12th day of July, 1915, the defendant was put upon trial in St. Charles county on an indictment charging forgery, which indictment had been found by the grand jury on November 4, 1914, and in this said St. Chwies case the jury returned a verdict of `guilty' and the punishment of the defendant was assessed at three years in the State Penitentiary, and on July 13, 1915 defendant was sentenced to the State Penitentiary. An appeal was allowed to the defendant to the Supreme Court of the state of Missouri, he giving a statutory appeal bond, being case No. 19687 of the Supreme Court of the state of Missouri, wherein, on December 0, 1916, the judgment of the circuit court was affirmed (190 S. W. 866); that on the 15th day of December, 1916, he was committed to the State Penitentiary; thereupon he proceeded to serve that term to its full extent, less such time as his term was decreased by the operation of the merit system, the defendant being what is known as a model prisoner, and thus entitled to the maximum benefit conferred by the merit system then in force; that on either the 18th or the 19th day of November, 1918, defendant, having completed his term as aforesaid, was released from the penitentiary, at which time he was not under sentence in any case; that he was taken by a guard, sent by the prosecuting attorney of the circuit court of the city of St. Louis, to the said circuit court, where sentence was pronounced OR indictment No. 193, and his punishment fixed at three years in the pententiary of the state of Missouri; whereupon defendant took an appeal to the Supreme Court of the state of Missouri, he giving a statutory appeal bond, where on March 13, 1920, the judgment of the lower court was affirmed, this being case No. 21884, division 2 of the Supreme Court of the state of Missouri [281 Mo. 639, 220 S. W. 844] that on March 27, 1920, he was again committed to the State Penitentiary to serve the then sentence of three years. By virtue of the defendant again being a model prisoner, and thereby receiving the benefits of the merit system, defendant again received the maximum benefit permitted thereunder, and was on the 24th day of December, 1921, duly dismissed from the State Penitentiary, and is now at large, and there are now pending against said defendant indictments in the following counties: Montgomery, Franklin, Warren, Gasconade, and in the city of St. Louis—all of which were found prior to trial or sentence in either case above referred to, and all of which were taken by change of venue from St. Louis county, and, more particularly, there are pending against him indictments in the circuit court of the county of St. Louis, state of Missouri, being causes Nos. 27689, 27690, 27691, 27692, and 27693, which were filed June 22, 1915, prior to sentence in either case above referred to. Considerably in excess of 4 terms, to wit, 19 terms, of the court of the county of St. Louis have expired since the finding of all the aforementioned indictments, and considerably more than 4 terms, to wit, 8 terms, have expired since the 19th day of November, 1918; that the defendant has pot been tried on the indictments now pending; that at no time has he, nor any one for him, applied for a continuance of any of the said indictments, or dissented, consented, or acquiesced or in any other wise played any part in the continuances of said indictments, nor have they been at his solicitation, and, further, that the said continuances have not been entered, ordered, or permitted as a result of or have not been occasioned by the want of time to try such cause or such causes at the third term, fourth term or any subsequent or prior terms of said circuit court of the county of St. Louis, nor as a result of any of the matters mentioned in R. S. 1919, § 4042.

Relator further respectfully states:

"That he has filed in each of said criminal prosecutions in all jurisdictions above mentioned a motion to be discharged in words and figures as follows, to wit [caption and formal parts omitted]:

"`Now comes defendant, appearing solely for the purpose of this motion, and for no other purpose, and respectfully shows to the court that he was not brought to trial before the end of the third term nor before the end of the fourth term after the finding of this indictment, which was found at the May term, 1915, of the circuit court of St. Louis county, and that this cause was not continued from the third term nor from the fourth term after the indictment was brought for the purpose set out in section 4042, R. S. 1919; that the delay in bringing him to trial has not resulted from any application of his, and that said delay has not been occasioned by want of time on the part of the court to try the cause at the third term or at the fourth term, or any prior term thereof, or any subsequent term thereof; that on account thereof the petitioner is entitled to be discharged. Wherefore petitioner prays to be discharged, and that a judgment be entered as provided by law.'

"That relator, by his attorneys, did file the above motion in the cases pending in St. Louis county, and more particularly in cause No. 27689, in division No. 2 of said circuit court of St. Louis county. That the facts stated in relator's motion were conceded to be correct. That a transcript of the record in said cause No. 27689 shows the following entries and continuances, opposite which relator has signified the terms that have elapsed:

"6-22-15. Indictment filed. Capias to county sheriff. May term, 1915.

"6-25-15. Capias returned by county sheriff executed: `Arraignment, reading of indictment waived, plea of not guilty. Deft. recognized in open court in sum of $500, with surety, to appear July 21, 1915, and thereafter.'

"9-18-15. Continued. Sept. term, 1915.

"10-12-15. Cause continued.

"1-26-16. Continued. Jan. term, 1916. May term, 1916.

"Sept. 16, 1916. Continued. Sept. term, 1916.

"10-3-16. Continued. Jan. term, 1917.

"May 5, 1917. Continued to next term. May term, 1917.

"5-21-17. Continued.

"Sept. 15, 1917. Continued to next term. Sept. term, 1917.

"Jan. 23, 1918. Continued pending sentence in another case. Jan. term, 1918.

"May 29, 1918. Continued pending sentence in another case. May term, 1918.

"7-14-1918. Continued to next term. September term, 1918.

"4-30-18. Continued pending sentence in another case. (Between these dates there was a time in which defendant was not under sentence or confined in the penitentiary.)

"2-17-19. Continued. January term, 1919.

"5-20-19. Continued pending sentence in another case. May term, 1919.

"9-13-19. Continued pending sentence in another case. Sept. term, 1919.

"9-29-19. Continued pending sentence in another case.

"1-19-20. Continued pending sentence in another case. Jan. term, 1920.

"5-17-20. Continued pending sentence in another case. May term, 1920.

"9-20-20. Continued pending sentence in another case. Sept. term, 1920.

"Apr. 30, 1921. Continued to next term. Jan. term, 1921.

"5-2-21. Continued, defendant under sentence in another cause. May term, 1921. Sept. term, 1921.

"12-30-21....