The State ex rel. Hulen v. Trimble

• Decision Date: 25 August 1925
• Docket Number: 26074
• Citation: 275 S.W. 536,310 Mo. 274
• Parties: THE STATE ex rel. RUBY M. HULEN, Prosecuting Attorney of Boone County, v. FRANK H. TRIMBLE et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

275 S.W. 536

310 Mo. 274

THE STATE ex rel. RUBY M. HULEN, Prosecuting Attorney of Boone County, v. FRANK H. TRIMBLE et al., Judges of Kansas City Court of Appeals

No. 26074

Supreme Court of Missouri

August 25, 1925

Writ quashed.

Robert W. Otto, Attorney-General, W. L. Vandeventer, Assistant Attorney-General, and Ruby M. Hulen, of counsel, for relator.

(1) The Court of Appeals had no jurisdiction in the matter and were wholly without authority to issue said order directed to the Circuit Clerk of Boone County. Secs. 4088 to 4094, R. S 1919. (2) Habeas corpus is the only method of raising the question of bail in any court except the court in which the case was tried and in the Supreme Court where the question of bail arises after conviction and pending appeal. State v. Watson, 54 Mo.App. 416. (3) The right of appeal in criminal cases is unknown to the common law. State v. Leonard, 250 Mo. 406; State v Thayer, 158 Mo. 36; Buessel v. United States, 258 F. 811; 17 C. J. p. 13, sec. 3261. (4) There is no constitutional right of appeal in Missouri. Ex parte Heath 227 Mo. 398; Ex parte Carey, 267 S.W. 806. (5) The right of appeal in Missouri is purely statutory. State v Leonard, 250 Mo. 406; State v. Mericle, 245 Mo. 548; State v. Graham, 184 S.W. 1190; State v. Campbell, 297 Mo. 187; Ex parte Carey, 267 S.W. 806. (6) The constitutional right to bail does not confer the right to bail pending appeal from a conviction. Ex parte Heath, 227 Mo. 393; Ex parte Dipley, 233 Mo. 235; Ex parte Carey, 267 S.W. 806.

George S. Starrett and E. C. Anderson for respondents.

(1) The Court of Appeals did have jurisdiction of the matter in this case and was the only court that did have jurisdiction and authority to issue the order directed to the Circuit Clerk of Boone County, to admit defendant to bail without habeas corpus proceedings. Sec. 4088, R. S. 1919, relied upon by the relator, was enacted before the adoption of our present Constitution creating courts of appeals, and is found in practically its present form in Sec. 3, ch. 14, p. 1202, R. S. 1855, and all subsequent statutes, down to the present time. This was at least twenty years before any of our courts of appeals were created and at a time when the Supreme Court was the only appellate court. By the Constitution of 1875, and the Amendment thereto of 1884, the Kansas City Court of Appeals was created, and by Section 5 of said amendment these courts of appeals were given jurisdiction to hear and determine all appeals in misdemeanor cases from the circuit courts of their respective districts. State v. Meyer, 246 Mo. 596; State v. Ramsey, 110 Mo. 212; State v. Zinn, 141 Mo. 329; State v. McKee, 196 Mo. 106; State v. Cook, 217 Mo. 326. It must follow that the constitutional provisions above named have modified the provisions of Sec. 4088, R. S. 1919, originally enacted prior to 1875, so as to vest in the courts of appeals jurisdiction in all matters relating to misdemeanor cases. (2) In the application to the Court of Appeals for stay of execution and bond in the case of the State v. Sellinger, all the facts clearly appear in the record of the case filed in that court, and this court therefore is not put to the necessity of bringing the prisoner before them on a writ of habeas corpus. The case of State v. Sellinger is not pending in the Circuit Court of Boone County. It is pending now in the Kansas City Court of Appeals, and that court is the only court authorized to admit defendant to bail without habeas corpus proceedings. The Court of Appeals, having jurisdiction of this matter of appeal, clearly has the same authority to admit the defendant to bond and to fix the amount thereof, without habeas corpus proceedings, as the circuit court had.

Blair, J. All concur, except Walker, J., absent.

OPINION

BLAIR

This is an original proceeding in certiorari, whereby relator seeks to quash an order of the Kansas City Court of Appeals, staying execution of the judgment upon a conviction for misdemeanor in the Circuit Court of Boone County, after appeal was granted therein below, and fixing the amount of the appeal bond of defendant in said case. Our writ issued and respondents have filed in this court certified copies of the records and proceedings in their court. The facts are thus stated in relator's brief:

"On the 25th day of November, 1924, Herman Sellinger was convicted on an information filed by the relator herein of the crime of open, gross lewdness, notorious acts of public indecency, grossly scandalous, which is a misdemeanor, and his punishment assessed at one year in the Boone County jail. Sellinger filed a motion for a new trial and a motion in arrest, which were overruled. He then filed an affidavit praying that appeal be allowed to the Kansas City Court of Appeals. An order was made granting the appeal. An application was then made to the trial judge to make an order that said appeal should act as a stay of the execution of the judgment and sentence rendered against Sellinger. The court refused to make the order and refused to fix an appeal bond. Whereupon, Sellinger on the 1st day of December, 1924, filed an application with the clerk of the Kansas City Court of Appeals praying for an order from said court directing that the appeal granted by the Circuit Court of Boone County operate as a stay of proceedings on the judgment and sentence.

"The Hon. Francis H. Trimble, one of the judges of the Kansas City Court of Appeals, made an order directed to the Circuit Clerk of Boone County and requiring said clerk to take a bond in the sum of $ 1,000 for the appearance of said Sellinger in execution upon the decision of the Court of Appeals. The Clerk of the Circuit Court of Boone County, acting under the instruction of Judge Trimble, let the prisoner to bail as required in said order."

In addition to the foregoing it should be stated that relator, as Prosecuting Attorney of Boone County, filed in the Court of Appeals a motion for rehearing, which was overruled. Thereafter the petition for our writ was filed in this court. The case was presented to us upon the printed briefs and arguments of the parties.

The petition for our writ was filed December 16, 1924, and suggestions in support thereof on December 20, 1924. It is evident that the learned circuit judge and the relator shared the then opinion of the Attorney-General that the mere taking of an appeal in a criminal cause did not entitle the convicted defendant to bail and to go at large thereunder pending disposition of his appeal and that he was not so entitled to bail unless the trial court or the Supreme Court, or a judge thereof, upon inspection of the record, was of the opinion that there was probable cause for appeal. The Attorney-General appeared in this court in the habeas corpus cases of Ex parte Carey, 267 S.W. 806, and Ex parte Newland, 267 S.W. 809, and made that contention. On December 30, 1924, opinions were handed down by this court in those cases.

In the Carey case we said: "Any defendant in a criminal cause, except in cases in which the sentence of death or imprisonment for life is imposed, is entitled, as a matter of right, to bail pending his appeal from a judgment of conviction. " The Newland case simply followed the conclusion reached in Carey's case.

Whatever question there had theretofore been concerning the absolute right of a convicted defendant to give bail pending his appeal, except where the sentence of death or life imprisonment was imposed, was necessarily settled by said decisions. We doubt not that our learned brother of the trial court would have granted Sellinger opportunity to give such bail and that no application to respondents for stay of execution and the right to give bail would have been rendered necessary had the Carey and Newland cases been decided when Sellinger's appeal was granted.

The foregoing is merely an observation by the way, because the record in this case discloses substantial questions for our consideration and does not in terms challenge the right of a defendant to bail pending appeal. However, as above stated, the denial of such right was apparently the underlying reason for all of the proceedings mentioned.

Respondents undertook to and did make an order for a stay of execution in Sellinger's case and let him to bail. Their power and jurisdiction to do this is now challenged. The power of the Supreme Court to grant a stay of execution in a felony case, under similar circumstances, is conceded by relator.

Counsel for Sellinger seemingly misconceived the remedy in applying to respondents for stay of execution, for the reason that bail is apparently not contemplated under Sections 4088 to 4091, which we will quote later. These sections seem to have been intended for relief primarily where defendant has been sentenced to the penitentiary, in order that such defendant may remain in the jail of his county pending his appeal, if he is unable to furnish bail, and avoid being taken to the penitentiary, there to undergo the stigma of having been a convict, although the judgment may thereafter be reversed. A stay of execution from a jail sentence pending appeal, without the opportunity of giving or ability to give bail, would be of no benefit to a convicted defendant, for he would have to be kept in custody anyhow, notwithstanding a formal order staying execution, lest he depart the country and not be on hand to surrender himself in judgment.

The view of the said sections of the statute, contained in the preceding paragraph, is merely the opinion of the writer and is not necessary to or any part of the decision in this case.

The sections of the statute covering stays of execution in criminal proceedings are Sections 4088, 4089, 4090 and 4091, Revised Statutes 1919,...