Thompson v. Sanders
| Decision Date | 18 April 1934 |
| Parties | Ex parte George C. Thompson, Petitioner, v. J. M. Sanders, Warden |
| Court | Missouri Supreme Court |
Petitioner discharged and remanded to the custody of the Sheriff of Miller County.
Irwin & Bushman, H. M. Atwell and Harry L. Buchanan for petitioner.
Wm O. Sawyers for respondent.
Frank J. All concur, except Ellison and Hays JJ., absent.
Habeas Corpus: Petitioner was found guilty of murder in the first degree by a jury in the Circuit Court of Miller County, and sentenced to life imprisonment in the State penitentiary where he is now confined. He seeks to be discharged from said imprisonment by habeas corpus. The petition for the writ alleges in substance, that the judgment and sentence under which petitioner is imprisoned is illegal and void for the following reasons: that the Circuit Court of Miller County was without jurisdiction to hear and determine said cause or render judgment and sentence therein for the reason that on March 5, 1934, before the trial started, and before the jury was sworn, defendant filed a petition verified by his oath, alleging therein that he could not have a fair and impartial trial of said cause in said court for the reason that Honorable Nike G. Sevier, judge of said court, was so biased and prejudiced against him that he would not afford him a fair trial; that said application was supported by the affidavit of two reputable citizens of Miller County, to-wit: F. E. Agee and C. R. Yarter, who, upon their oaths stated that said judge was biased and prejudiced against defendant and that he would not accord said defendant a fair and impartial trial; that said application prayed that another judge be substituted to try said cause in Miller County; that on March 5, 1934, the same day said application was filed, said court entered of record the following order:
The petition for the writ further alleges that the judgment and sentence under which petitioner was and now is imprisoned is void for the reason that said judgment and sentence was rendered on Sunday, March 11, 1934. Other reasons are alleged as grounds for petitioner's discharge, but, in our view of the case, a proper determination of the grounds mentioned will necessarily dispose of the case.
Upon the filing of the petition for the writ, our writ issued directed to J. M. Sanders, warden of the State penitentiary where petitioner is imprisoned. Said warden made return to the writ, alleging therein, in substance, that he held petitioner in custody by virtue and authority of a commitment issued by the Circuit Court of Miller County, an original copy of which was attached to said return. Petitioner filed answer to said return admitting the facts alleged in the return, and further pleading that the judgment of the Circuit Court of Miller County upon which said commitment was issued is void and of no effect for the reasons stated in the petition for the writ, which said reasons are specifically alleged in the answer to said return.
Section 3648, Revised Statutes 1929, provides that, "When any indictment or criminal prosecution shall be pending in any circuit court or criminal court, the judge of said court shall be deemed incompetent to hear and try said cause in either of the following cases; . . . or, fourth, when the defendant shall make and file an affidavit, supported by the affidavit of at least two reputable persons, not of kin to or counsel for the defendant, that the judge of the court in which said cause is pending will not afford him a fair trial."
In such event Section 3649, Revised Statutes 1929, provides for the election of a special judge, and Section 3651 provides for the designation of the judge of another circuit or criminal court to try the cause, when no special judge is elected, or, when elected, the special judge fails to qualify.
Petitioner contends that the filing of his affidavit, supported by the affidavit of two reputable persons, not of kin to or counsel for defendant charging that the judge of the Circuit Court of Miller County was so biased and prejudiced against him that he would not afford him a fair trial, rendered said judge incompetent to act further in the case, except to direct the substitution of another judge.
In a habeas corpus proceeding the return to the writ is the first pleading. The issues in such a proceeding are made up by the return to the writ and petitioner's answer to said return. The return to the writ being the first pleading, the facts set out in the return are to be taken as true, and accepted as the ultimate facts in the case, unless such facts are denied, or their effect avoided by some appropriate pleading. [State ex rel. Shartel v. Skinker, 325 Mo. 955, 25 S.W.2d 472, 476, and cases cited.] Section 1453, Revised Statutes 1929, provides that, "The party brought before any court or magistrate, by virtue of any writ of habeas corpus, may deny the material facts set forth in the return, or allege any fact to show, either that his detention or imprisonment is unlawful, or that he is entitled to his discharge. . . ." In the instant case, the warden of the penitentiary against whom the writ was directed, made return to the writ alleging therein, in substance, that he held petitioner in custody by virtue of a commitment issued by the Circuit Court of Miller County. In answer to the return to the writ petitioner admitted that respondent, as warden of the penitentiary, held him in custody by virtue of a judgment, sentence and commitment of the Circuit Court of Miller County, but further alleged that said judgment, sentence and commitment were void and of no effect for the following reasons: (1) because the affidavits filed in said circuit court charging that the judge of said court was so biased and prejudiced against defendant that he would not afford him a fair trial, rendered said judge incompetent to hear and determine said cause, and divested him of jurisdiction to take any further action therein except to make an order directing the substitution of another judge to try said cause in Miller County, and (2) because the verdict in said cause was rendered, and the judgment and sentence therein pronounced on Sunday March 11, 1934.
It is conceded in the pleading of both parties that petitioner is held in custody by virtue of a commitment issued by the Circuit Court of Miller County. This conceded fact shows prima facie that petitioner was and now is lawfully imprisoned. To entitle petitioner to a discharge from such imprisonment on habeas corpus, it was incumbent upon him to plead and prove a state of facts that would avoid the effect of the commitment under which he is held. The rule in this behalf is thus stated, in 29 Corpus Juris, 166:
In order to avoid the effect of the commitment under which he is imprisoned, petitioner did plead in his answer to the return to the writ that the judge of the circuit court was rendered incompetent and was divested of jurisdiction to hear and determine the cause pending against him in that court, by the filing of certain disqualifying affidavits as heretofore pointed out. At the hearing of the habeas corpus proceeding in this court, it was conceded by all parties that such affidavits were filed in the circuit court. So the question to be determined is whether or not the filing of such affidavits divested the circuit court of jurisdiction to hear and determine said cause. If so, petitioner's trial, conviction and imprisonment are illegal and void because had without jurisdiction.
Section 3649, Revised Statutes 1929, provides, in substance, that whenever in any criminal cause, the defendant shall make application under oath, and supported...
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