The State ex rel. Gentry v. Westhues

• Citation: 286 S.W. 396,315 Mo. 672
• Decision Date: 06 August 1926
• Docket Number: 27320
• Parties: The State ex rel. North Todd Gentry, Attorney-General, and Leslie Rudolph, Deputy Warden and Acting Warden of the State Penitentiary, v. Henry J. Westhues, Judge, and Richard R. Nacy, Clerk, of Circuit Court of Cole County
• Court: United States State Supreme Court of Missouri

286 S.W. 396

315 Mo. 672

The State ex rel. North Todd Gentry, Attorney-General, and Leslie Rudolph, Deputy Warden and Acting Warden of the State Penitentiary, v. Henry J. Westhues, Judge, and Richard R. Nacy, Clerk, of Circuit Court of Cole County

No. 27320

Supreme Court of Missouri

August 6, 1926

Record Quashed.

North Todd Gentry, Attorney-General, and A. M. Meyer Special Assistant Attorney-General, for relators.

(1) The fact that the parole was revoked after the expiration of a period longer than the term of sentence does not affect a discharge of a prisoner, but under Secs. 4163, 4162, 4157, R S. 1919, the court may in its discretion revoke the parole at any time within ten years. Ex parte Mounce, 269 S.W. 385; State v. Collins, 225 Mo. 633; Sec. 4158, R. S 1919. (2) The writ of habeas corpus is an extraordinary remedy and will lie only in cases where it appears upon the face of the record or by a positive proof that the court, officer or person detaining the body of the petitioner was absolutely without authority or jurisdiction. State ex rel. v. Dobson, 135 Mo. 1; Ex parte Buckley, 215 Mo. 93; Ex parte Mitts, 278 S.W. 1047. (3) Attached to the return of the deputy warden is a certified copy of the judgment of the Circuit Court of Pulaski County which shows that the petitioner was duly sentenced to the penitentiary by said court. This certified copy of the record was delivered to the deputy warden at the time the petitioner was placed in his custody, and the certificate thereto is in due form. The court cannot go behind this certified copy of the record which was in due form, and delivered to relator at the time the petitioner was placed in his custody. The Circuit Court of Cole County had no right or authority to review, modify, set aside or construe the judgment of the circuit court of another county, both of course being of equal jurisdiction. Ex parte Ruvell, 301 Mo. 254. There also appears of record an entry on the minutes of the judge's docket showing the assessment of punishment upon a plea of guilty and a parole, which is at least presumptive evidence that there was a judgment and sentence in fact without other showing. State ex rel. v. Dobson, 135 Mo. 1; Sec. 4059, R. S. 1919. (4) Failure of the clerk to enter a proper judgment does not invalidate the judgment nor render the defendant liable to discharge upon a writ of habeas corpus, if there was a judgment in fact. Sec. 4059, R. S. 1919. The entry on the minutes on the judge's docket is sufficient to show that a judgment was rendered and that the court had jurisdiction of the defendant, and is a sufficient basis for a nunc pro tunc judgment. Ex parte Mitts, 278 S.W. 1047. (5) The proper court, were the proceedings in this case attacked directly, would have power to remand the defendant for sentence and judgment in case the clerk had failed to enter judgment of record. State v. Duff, 253 Mo. 415; Sec. 4111, R. S. 1919. (6) The proceedings in this case show that the Pulaski Circuit Court had jurisdiction of the person of the petitioner and of the subject-matter of the action. Therefore he was not entitled to be released upon a writ of habeas corpus. State ex rel. v. Dobson, 135 Mo. 1; Ex parte Tuvell, 301 Mo. 254.

Atwood, J. All concur, except White and Graves, JJ., absent.

OPINION

ATWOOD

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, Missouri, 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, Missouri, 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, Missouri, the said Ezra Overby was, by the said court, duly sentenced to the penitentiary of the State of Missouri for a term of two 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, Missouri, 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, Missouri, 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, Missouri," 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, Missouri, the applicant, Ezra Overby, entered a plea of guilty to an information charging him with forgery; that said circuit court assessed his punishment at two years in the State Penitentiary and immediately paroled him, as is shown by the judge's docket of the Circuit Court of Pulaski County, Missouri, for the March term, 1921; that your applicant, Ezra Overby, was not sentenced to the State Penitentiary for a term of two 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, Missouri, 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, Missouri, 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, Missouri, 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, Missouri, 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 followings, 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 two years in the State Penitentiary.

"State of Missouri,

v.

"Ezra Overby.

412. Forgery.

"Now at this day comes the...