The State ex rel. Walker v. Murphy
| Decision Date | 04 February 1896 |
| Citation | 33 S.W. 1136,132 Mo. 382 |
| Parties | The State ex rel. Walker, Attorney General, v. Murphy, Judge |
| Court | Missouri Supreme Court |
Writ awarded.
Prohibition.
This is an original proceeding commenced in this court by the attorney general to obtain a final judgment prohibiting the defendant, the judge of the St. Louis court of criminal correction, from further taking cognizance or asserting jurisdiction of an application made to said court by Judge John G. Wear for a writ of habeas corpus to release Charles Wear, who was in the custody of Lawrence Harrigan chief of police of the city of St. Louis, and by him held for T. A. Tickell, the sheriff of New Madrid county, who held and had the legal custody of said Charles Wear by virtue of an alias capias of commitment issued by the clerk of the circuit court of Butler county, Missouri, upon an indictment duly preferred in said Butler county against said Charles Wear for murder in said county.
The petition avers that said petition for habeas corpus so instituted by said John G. Wear on behalf of said Charles Wear was filed before the defendant as judge of the St. Louis court of criminal correction and was directed against J. R. Speed and one Hotfelder, the turnkeys at the hold-over or jail of the Four Courts building in said city of St. Louis. It is further averred that at the time said application and proceeding for habeas corpus were commenced before said defendant, and the jurisdiction to hear and determine the same assumed by him, the judges of the criminal court of the city of St. Louis, the Honorable Thomas B. Harvey and the Honorable Henry L. Edmunds were both present in said city and their respective courts were in session during the pendency of said proceeding before defendant, and that in issuing said writ of habeas corpus and assuming jurisdiction to hear and determine the same, while the said judges of the criminal court of the city of St. Louis were present in said city, the defendant was exceeding his jurisdiction as judge of the said court of criminal correction.
A preliminary rule upon Judge Murphy was granted, returnable January 7, 1896, at which time he appeared and filed a demurrer to the petition and a motion for judgment upon the pleadings.
Owing to the enforced absence of one of the judges of this division and the refusal of another to sit on account of relation to one of the parties, the matter has been unavoidably delayed until this time.
Whether the defendant was exceeding his jurisdiction when he issued the writ, or continued to do so after he was notified that Charles Wear was held in custody by the sheriff of New Madrid county by virtue of a regular commitment issued upon an indictment for murder duly preferred against said Wear in Butler county, Missouri, must be determined by the laws creating the St. Louis court of criminal correction in connection with the statute governing habeas corpus in this state.
The St. Louis court of criminal correction is of statutory origin. While for some purposes it is denominated a court of record, it is not one proceeding according to the course of the common law. The powers of the judge of said court are defined in the seventh section of the act creating the court. 2 R. S. 1889, p. 2153. Among others it is provided "he shall have power to issue writs of habeas corpus, and determine the same."
By section 5412, Revised Statutes, 1889, it is specifically provided that "the several provisions contained in this chapter [chapter 78] shall be construed to apply, so far as may be applicable, and except where otherwise provided, to every writ of habeas corpus authorized to be...
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