Opinion
No. 21940.
May 12, 1953.
Alfred H. Osborne, pro se.
Richard K. Phelps, W. Prewitt Ewing and J. Donald Murphy, Kansas City, for respondent.
Upon petitioner's application we issued our writ of habeas corpus. Respondent, Sheriff of Jackson County, Missouri, filed his return, claiming custody under a capias warrant upon an indictment charging petitioner with first-degree murder. Petitioner, by his answer to the return, contends his restraint is illegal because the indictment and capias warrant are insufficient, and because he has not been brought to trial within the time prescribed by Sections 545.890 to 545.920, inclusive RSMo 1949, V.A.M.S.
The facts which do not appear to be disputed by the pleadings are that the petitioner, on November 9, 1951, during the September Term, 1951 of the Circuit Court of Jackson County, Missouri, was indicted by the Grand Jury of that county for first-degree murder of one Matt Jones; that on the same date on order of the Circuit Court, Division 4, a capias warrant was issued for the arrest of petitioner on that charge; that on November 13, 1951, the second day of the November Term, 1951, petitioner appeared, was arraigned and admitted to bail; that petitioner, at the time of the application and writ herein, was and is being also held in custody by the respondent under a judgment and commitment of said court in another proceeding for a term of ten months, beginning January 28, 1953; that eleven other indictments were returned against petitioner in the September, 1951 Term of said court; that the bondsman on petitioner's bond in the instant case has surrendered the petitioner to the court, was released from said bond, and petitioner was remanded to the custody of the respondent.
By his return herein the respondent alleges that he is holding petitioner in custody under the capias warrant issued under said indictment for first-degree murder, the bondsman having surrendered petitioner, and the court having thereupon ordered the petitioner remanded to respondent's custody. Attached to the return are copies of the Grand Jury proceeding, the indictment aforesaid, and copies of the records of the court as the same relate to the case here involved.
The copies of the records of the court, attached to the respondent's return, insofar as they pertain to the issues in this proceeding, are, in effect, term by term, as follows:
In the September, 1951 Term the indictment in question was returned on November 9, 1951, the same being the day before the adjournment for that term.
On November 13, 1951, the second day of the November Term, 1951, petitioner appeared, was arraigned and allowed bail. Thereafter, on January 12, 1952, the court ordered all matters and causes then pending continued to the January 1952 Term.
On the first day of the January Term, 1952, the court reset the cause for trial on January 31, 1952, and on that date reset the same for trial on February 28, 1952. On the same day petitioner filed application for change of venue. On February 4, 1952, change of venue was allowed to Division 6 of said court. On February 18, 1952, the court continued the above cause and other causes for the term and set the same for the first day of the March Term, 1952, namely March 10, 1952 — "on account of the docket being congested and lack of time". Thereafter, on March 5, 1952, during said January Term, 1952, petitioner filed a motion to set his cause for trial. On March 8, 1952, the court continued all pending matters to the March Term, 1952, and set same for March 10, 1952.
During the March Term, 1952, and on May 7, 1952, the court "on account of lack of time and congested docket", continued said cause to May 12, the same being the first day of the May Term, 1952, and on May 10, 1952, continued all causes then pending to the May Term, 1952, beginning May 12, 1952.
In the May Term, 1952, and on June 4 of that term, petitioner was surrendered by his bondsman and the bondsman was released thereon. On September 4, 1952, the court continued all causes for the term, and set the same for September 8, 1952, the first day of the September Term, 1952, and made a similar order on September 6, 1952.
In the September Term, 1952, and on September 19 of that term, petitioner filed a motion to dismiss the indictment and to discharge the petitioner, and on the same day withdrew the same. Thereafter, on said day, petitioner filed motion to set his cause for trial, which motion was taken under advisement. On the same day a new bond was made and approved. Thereafter, on November 6, 1952, the court continued the cause for the term and set it for the first day of the November Term, 1952. On the day that order was made the petitioner refiled his motion to dismiss the indictment and to discharge the defendant. On November 8, 1952, the court continued all matters for the term and set the same for November 10, 1952, the first day of the November Term, 1952.
On the first day of the November Term, 1952, the case was ordered "held". On the same day the court ordered all matters continued for the term and set the same for January 12, 1953, the first day of that term. Petitioner's cause was retained in Division 6. On the same day, January 12, 1953, petitioner's bondsman surrendered him and the petitioner was remanded to the custody of the sheriff. On February 6, 1953, the petitioner made oral motion for change of venue and the same was overruled.
Petitioner's answer to the respondent's return does not deny the correctness of the copies of the court records attached to the return. He renews his attack as to the sufficiency of the indictment and capias warrant thereunder, and asserts that if the Circuit Court ever obtained jurisdiction of the subject-matter of said indictment and warrant, which he denies, the court has lost jurisdiction thereof, and that said capias warrant is void for the reason that for six successive terms of court he has at every opportunity announced himself ready for trial, and that at each of said terms the various divisions of said court were available for the trial of said cause; that the dockets, neither criminal nor civil, were so congested that, for lack of time, the said cause could not have been tried by the divisions assigned to the criminal cases, or by other divisions to which under the rules of the court, the cause could have been sent in preference to civil cases; that failure to try said cause is contrary to the statutes and rules pertaining to the rights of persons charged with a crime to a speedy trial thereof; that the various judges making the various orders of continuance of his cause above set forth did so arbitrarily, capriciously, oppressively, willfully, and thereby unlawfully denied petitioner his constitutional and statutory rights, and acted in excess of the jurisdiction of the court, making such orders null and void and without legal force and effect. In connection with the foregoing allegations the petitioner alleges in minute detail the number of cases and the nature thereof disposed of by all the divisions of the Circuit Court of Jackson County, Missouri, during the period in question, and sets forth the criminal cases of subsequent numbers disposed of in that period.
The principal question to be determined in this proceeding is the propriety of the remedy here pursued. It is well settled that habeas corpus is a proper remedy by which a person held under a criminal charge may raise the question of the invalidity of an indictment which is void upon its face, or where an excess of jurisdiction plainly appears of record. Fernbaugh v. Clark, 236 Mo.App. 1200, 163 S.W.2d 999; Griggs v. Venerable Sister Mary Help of Christians, Mo.App., 238 S.W.2d 8. As we recently pointed out in another proceeding in habeas corpus brought by the same petitioner, Mo.App., 257 S.W.2d 691, it has been held that the right to discharge under Sections 545.890 to 545.920, supra, does not involve a jurisdictional question. Such a right is a privilege which may or may not be asserted, and may be waived. If asserted, it is a matter for hearing and disposition by the trial court in the nature of an interlocutory proceeding. Levine v. United States, 8 Cir., 182 F.2d 556, 558, certiorari denied 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665; State v. Hicks, 353 Mo. 950, 185 S.W.2d 650; State ex rel. Billings v. Rudolph, 322 Mo. 1163, 17 S.W.2d 932. The right to discharge under those sections cited depends upon the showing of laches on the part of the state. State v. Huting, 21 Mo. 464; State v. Marshall, 115 Mo. 383, 22 S.W. 452; State v. Nelson, Mo.Sup., 279 S.W. 401; State v. Woods, 346 Mo. 538, 142 S.W.2d 87, and State v. Haines, 160 Mo. 555, 61 S.W. 621.
The sections in question, 545.890 to 545.920, so far as they apply to Jackson County, Missouri, provide that any person indicted for any offense and committed to prison, unless he be brought to trial before the end of the third term after the indictment, or any person so indicted and held on bail not brought to trial before the end of the fourth term after the indictment, shall be entitled to be discharged as far as relates to the offense for which he was committed, "unless the delay shall happen on the application of the prisoner, or shall be occasioned by the want of time to try the cause at such * * * term". Section 545.910 contains provisions for one additional term under certain conditions not involved herein.
Since the orders of continuance complained of do not on their face appear void for any want of jurisdiction over the person or subject-matter, or the exercise of any excess of jurisdiction, petitioner's attack is reduced to a challenge of the justification or truth of the entries made under the facts. As the orders now stand they all appear to be made of the court's own motion; they show no request for any continuance by the state or other laches on the part of the prosecution. Two of the orders state reasons that are exceptions to the application of the statutes cited, made so by the statutes themselves. The other orders, stating no grounds for the continuance, are presumed to be for proper reasons in the absence of evidence to the contrary. State v. Nelson, Mo.Sup., 279 S.W. 401. Such evidence was presumably considered by the trial court on petitioner's motion for discharge, and the motion was denied. To entertain that evidence here would be inconsistent with the finding and order of a court of competent jurisdiction and would be a collateral attack not allowable in habeas corpus on a judgment or order made by a court possessing jurisdiction to make the order. Young v. Parker, 355 Mo. 245, 247, 195 S.W.2d 743. Furthermore, in the absence of a lack of jurisdiction or apparent nullity of a proceeding, we are enjoined by Section 532.450 RSMo 1949, V.A.M.S., which provides: "No person imprisoned on any indictment found in any court of competent jurisdiction, or by virtue of any process or commitment to enforce such indictment, can be discharged under the provisions of this chapter [habeas corpus]; but if the offense be bailable, he may be let to bail, and if the offense be not bailable, he shall be remanded forthwith".
The effect of a discharge under the present application for habeas corpus on the grounds that petitioner had not been brought to trial within the time required by the statute, would be an acquittal of the offense charged and a complete defense to a subsequent indictment for the same offense. State v. Wear, 145 Mo. 162, 46 S.W. 1099.
From the foregoing, we conclude that we have no authority or jurisdiction to order the discharge of the petitioner in this proceeding on the ground that he has not been brought to trial within the time required by statute.
We have examined the indictment and capias warrant and do not find them vague, indefinite or otherwise insufficient as petitioner contends.
Writ quashed, and the petitioner is remanded to the custody of the respondent.
All concur.