The State ex rel. Stevens v. Wurdeman

• Decision Date: 06 December 1922
• Citation: 246 S.W. 189,295 Mo. 566
• Parties: THE STATE ex rel. BEVERLY C. STEVENS v. G. A. WURDEMAN, Judge of Circuit Court, and FRED E. MUELLER, Prosecuting Attorney
• Court: Missouri Supreme Court

246 S.W. 189

295 Mo. 566

THE STATE ex rel. BEVERLY C. STEVENS v. G. A. WURDEMAN, Judge of Circuit Court, and FRED E. MUELLER, Prosecuting Attorney

Supreme Court of Missouri

December 6, 1922

Preliminary rule made absolute.

Wood & Teasdale for relator.

(1) "In a case like this where relator if he could not have the relief prayed would be compelled to go to trial in" 76 "cases, then if defeated would have to give bond in each case, take an appeal in each case, pay for a transcript in each case, pay a docket fee in each case . . . as well as counsel fees in each court, it must be conspicuously obvious that such appeals, although available, would be 'inadequate to meet the emergencies of the case or afford the redress to which the injured party is entitled.'" State ex rel. Anheuser-Busch Assn v. Eby, 170 Mo. 497. (a) Prohibition is the appropriate remedy where courts have proceeded to exceed the bounds of legitimate power and authority. R. S. 1919, sec. 2057; State ex rel. Orr v. Latshaw, 237 S.W. 770; State ex rel. McEntee v. Bright, 224 Mo. 514; State ex rel. Mo. P. Ry. Co. v. Williams, 221 Mo 227. (b) And this even though a remedy by appeal exists where such remedy is not reasonably adequate, speedy and efficient. State ex rel. Orr v. Latshaw, 237 S.W. 770; State ex rel. Knisely v. Jones, 274 Mo. 395; State ex rel. Minn. Mutual Life Ins. Co. v. Denton, 229 Mo. 187; State ex rel. Anheuser-Busch v. Eby, 170 Mo. 497. (c) And that the lower court has ruled contra to a right given by an express statute is an additional circumstance favoring relief by prohibition, as is also the fact that the court's action is not justified by the record or involves the destruction of rights which cannot be restored. State ex rel. Knisely v. Jones. 274 Mo 395; State ex rel. Anheuser-Busch v. Eby, 170 Mo. 497; State ex rel. Minn. Mut. Life Ins. Co. v. Denton, 229 Mo. 187; State ex rel. Elam v. Henson, 217 S.W. 17; State ex rel. Aiken v. Buckner, 203 S.W. 242. (2) Any person indicted for an offense and held to answer on bail, shall be brought to trial before the end of the fourth term thereafter or shall be discharged. R. S. 1919, secs. 4041, 4042, 4043 and 4044; Mo. Constitution, art. 2, sec. 22; State v. Wear, 145 Mo. 162; State v. Keefe, 17 Wyo. 227; Arrowsmith v. Tennessee, 131 Tenn. 480; People v. Smith, 2 N. Y. Crim. 45; State v. Stalnaker, 2 Brev. 44; State v. Thompson, 32 Minn. 144. (3) Incarceration under a sentence does not arrest the operation of the special Statute of Limitations and does not affect a defendant's right to be discharged if not brought to trial within the statutory period. State v. Keefe, 17 Wyo. 227; Arrowsmith v. Tennessee, 131 Tenn. 480; People v. Smith, 2 N. Y. Crim. 45; State v. Stalnaker, 2 Brev. 44; State v. Thompson, 32 Minn. 144; Flagg v. State, 11 Ga.App. 37; Gaines v. State, 53 S.W. 623; People v. Flynn, 7 Utah, 378; Re Garvey, 7 Colo. 502; Dudley v. State, 55 W.Va. 472. (4) It is incumbent on the prosecution to show that the delay is within some exception in the statute. 12 Cyc. 499. (5) These limitations statutes are to be liberally construed, as they are in aid of a defendant's constitutional guarantees. State v. Wear, 145 Mo. 162. (6) The State can defer sentence to suit its convenience for further trials, and an accused should be tried on all the cases the State desires to prosecute before the State permits sentence to be entered in any case. R. S. 1919, sec. 3697; State v. Barnes, 274 Mo. 625; State v. Bell, 212 Mo. 130; Ex parte Meyer, 44 Mo. 729; State v. Watson, 95 Mo. 411.

J. C. Kiskaddon for respondents.

(1) The term at which an indictment is found is not to be counted in computing the time within which the defendant must be tried. Robertson v. State, 12 Mo. 592; State v. Haines, 160 Mo. 565; State v. Riddle, 179 Mo. 292; State v. Schyhart, 199 S.W. 205. (2) To entitle defendant to discharge there must appear to have been laches on the part of the State. State v. Huttig, 21 Mo. 475. (3) Nothing else appearing, it will be presumed that continuances granted to the State and by the court of its own motion were for good and sufficient reasons. State v. Nugent, 71 Mo. 147. (4) Although there is a general allegation that the cases in question were not continued for want of time to try them, but that, on the contrary, there was time, yet the particular allegations show that there was not time, and they control. State v. Balling, 105 Mo. 213. (5) It does not appear that the continuances were granted on application of the State, but were ordered by the court of its own motion. It follows, therefore, that relator is not entitled to a discharge. State v. Marshall, 115 Mo. 388. (6) "From the time of the conviction and sentence of defendant in the first case he was in legal contemplation in a custody different from that of the circuit court, and could not be put on trial in another case until he had served out his time for which he had been sentenced in the first, or until the judgment and sentence in the first case had been set aside or reversed; until then it is deemed to be in full force and effect." State v. Buck, 120 Mo. 496; Myers, ex parte, 44 Mo. 279; Jackson, ex parte, 96 Mo. 116; Allen, ex parte, 196 Mo. 231; State v. Bell, 212 Mo. 131; State v. Barnes, 274 Mo. 628. (7) Although not directly involved in this case, yet there are allegations in the petition that a large number of cases were transferred by change of venue to a number of counties. These changes of venue were ordered at the January term, 1915 (February 23, 1915), of the St. Louis County Circuit Court, the term succeeding the term at which the indictments were returned. As the State cannot take a change of venue they must have been granted at the instance of relator, or by the judge of his own motion. The first term of the court occurring after the change in the counties to which they are sent cannot be counted in computing the time in which a defendant is entitled to discharge. May 17, 1915, relator was tried, in the St. Louis Criminal Court, found guilty, and sentence deferred. July 12, 1915, he was convicted and sentenced in the St. Charles Circuit Court. There was no time thereafter in which he could have been brought to trial in any of the cases taken by change of venue to other courts within the limit of time prescribed by statute until December 24, 1921. State v. Cox, 65 Mo. 31; State v. Foster, 206 Mo.App. 344.

GRAVES, J. James T. Blair, J., concurs in points 1 and 2 and the result.

OPINION

In Banc.

Prohibition.

GRAVES J.

Original action in prohibition. Respondents are (1) one of the circuit judges of St. Louis County (13th Judicial Circuit) and (2) the prosecuting attorney of said county.

Relator, Stevens, has pending against him some seventy-six indictments, of which five are yet pending in St. Louis County. All were originally pending in St. Louis County, but upon his 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 a motion for discharge in No. 27689, but for the purpose of this case the particular charge is not material, because, in ultimate facts, the situation is the same.

Relator charges in effect that this cause, as well as others pending, have been "continued twenty-two times during a period of seven years, wherein which period there elapsed nineteen 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. Evidently 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 16 1914, the grand jury in and for St. Louis County, Missouri 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, 1915, a trial was had and a verdict rendered, finding the defendant guilty of the offense charged and assessing his punishment at three years' imprisonment 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. Charles case the jury returned a verdict of 'guilty' and the punishment of the defendant was assessed at three years' imprisonment 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 6, 1916, the judgment of the circuit court was affirmed; that on the 15th day of December, 1916, he was committed to the State Penitentiary. Thereupon he proceeded...