Ex parte Jilz

Norton, Judge,

delivered the opinion of the court.

The petitioner on the 12th of August, 1876, was tried in the St. Louis court of criminal correction and was convicted of criminal abortion, and was sentenced by said court to imprisonment in the St. Louis county jail for the term of one year and to the payment of a fine of $500. Under said sentence he was committed to the jail of said county, and there remained until the 22d day of August, 1876, when he applied to James J. Lindley. a judge of the circuit court of St. Louis county for a writ of habeas corpus, which was by said judge issued, and on a hearing of the same, the said Jilz was discharged from his said imprisonment on the same day, on the ground that the court of criminal correction had exceeded its power in sentencing him, Jilz, to confinement in the county jail of St, Louis county for one year, and that the sentence under it and the commitment were void. After said Jilz was thus discharged, he was again on the 29th day of September, 1876, re-committed to the jail of St. Louis county on a re-issue of the same commitment upon which he was originally imprisoned, and from which he had been discharged by Judge Lindley.

Petitioner Jilz now seeks to be discharged from this last imprisonment on the following grounds :

1st. Because the judgment and sentence of said court of criminal correction was void, in this, that under the law applicable to St. Louis county, said court only had jurisdiction to sentence him to an imprisonment for the period of six months in the city work house of the city of St. Louis :

2d. Because having been once discharged on habeas corpus by Judge Lindley, who had power to hear and determine the legality of his imprisonment, his re-arrest and re-imprisonment on the re-issue of the same commitment were illegal and void. .

If the second reason assigned by petitioner for his discharge be well founded, it will dispense with a consideration of the first. Our attention will therefore be directed to it.

It is not denied but that Judge Lindley had the legal right to issue the writ of habeas corpus which was issued by him- on the 26th day of August, 1876. If the Circuit Judge had power to issue the writ — which is conceded — such judge acquired jurisdiction over the subject matter, when the office of the writ had been partially performed, in bringing before him the prisoner with the cause of his detention and imprisonment.

In the case of Martin vs. The State, (12 Mo. 474,) where one Jackson was imprisoned by virtue of an indictment found in the criminal court of St. Louis county, and not having been brought to trial at the end of the second term after the indictment was found, he was discharged on habeas corpus by a judge of the circuit court of St. Louis county from his imprisonment, Martin, the jailor, having him in custody, was ordered by the criminal court to retain Jackson in custody to answer the indictment, but disregarded the order of the criminal court and discharged Jackson in obedience to the order of the Circuit Judge. Martin was fined for contempt in disobeying the order of the criminal court, and appealed to this court from the judgment imposing the fine. In the disposition of the case it became necessary to consider the action of the Circuit Judge in discharging Martin, and Judge Ryland, speaking for the court, observed: “The St. Louis circuit court, and the judge thereof, in vacation, had the power to grant and issue the writ. This gives to such court or judge jurisdiction over the matter ; and though the statute expressly declares that ‘ no person imprisoned on an 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 act, but may be let to bail if .the offense be bailable, and if the offense be not bailable he shall be remanded forthwith,’ yet this section does not take away the jurisdiction, but orders and directs what shall be done. A circuit judge, therefore, discharging. against this provision of the statute, may be considered as acting indiscreetly, even erroneously. Yet having jurisdiction over the subject, his order discharging must be considered a justification to the jailor in turning out the prisoner. * * * * The circuit judge having authority to issue the writ of habeas corpus (and this point the attorney for the State in his brief admits, but contends that all the subsequent acts of the judge are not only against but beyond his jurisdiction and are utterly void), his act afterwards in discharging Jackson, the prisoner, although it may have been erroneous and contrary to law, yet it could not be said to be an act cor am non judice.”

So, also, in the case of Ex parte Page, (49 Mo. 291,) it was held by this court “ that Page, who had been convicted of grand larceny and sentenced to the penitentiary for ten years, was entitled to his discharge on proceeding by habeas corpus, on the ground that the judgment of the court sentencing him to ten years was void, because the highest punishment under the law was seven years for such offense.”

Judge Lindley, of the circuit court, having' thus acquired jurisdiction of the person and subject matter, was authorized and required to determine the question as to the legality of the imprisonment, and whether he decided erroneously or not, is immaterial, the discharge of the prisoner being in favor of personal liberty is final and conclusive. In proceedings by habeas coipiis this court only exercises original jurisdiction, and in issuing the writ, and determining the questions arising under it, possessés no more power than is possessed by a circuit or county court, or any judge or officer authorized by law to issue the writ and authorized to remand, admit to bail or discharge the prisoner, according to the circumstances of the case.

In the case of Howe vs. The State, (9 Mo. 690,) it was held that an appeal from a judgment of the circuit court, refusing to discharge a prisoner on habeas corpus, would not lie to this court.

In case of Ex parte Long, (11 Mo. 662,) it was also held that “in deciding on the propriety of discharging a prisoner on habeas corpus, this court exercises no appellate jurisdiction.”

It would seem, therefore, that if a judgment of a circuit court refusing to discharge a prisoner, was conclusive, or not subject to be reviewed on appeal, a judgment of a court or judge discharging a prisoner, ought in like manner to be conclusive, especially when the statute expressly provides that “no person who has been discharged 'by the order of any court or magistrate upon a writ of habeas corpus, issued pursuant to this chapter, shall be again imprisoned, restrained, and kept in custody for the same cause,” etc. (Gen. Stat. 629, § 55.)

The case, Yates, (4 Johns. 318,) is very analogous in some of its features to the case at bar, and the questions involved were most ably and thoroughly discussed. Yates was committed to jail by a court of chancery for contempt of court. He applied to Justice Spencer for a writ of habeas corpus, and was by him discharged. After he was discharged the court of chancery ordered his arrest and imprisonment on the same charge. He' applied to Justice Spencer again for a writ of habeas corpus, and was again by him discharged. After this discharge he was again arrested and imprisoned on the order of the chancery court on the same charge. An application was subsequently made to the Supreme Court by Yates for a writ of habeas corpus, which was granted, and after a full hearing the prisoner was remanded to custody. He then sued out a writ of error, and the case was heard by the court of errors, and is reported in 6 Johns. 887. The decision of the Supreme Court in 4 Johns, was reversed by the court of errors and the prisoners discharged.

Clinton, who delivered the opinion, concurred in by a majority of the court, considered the following points with others :

1st. Whether a judge in vacation had jurisdiction in the case?

2d. Whether a person discharged on a habeas corpus can be re imprisoned for the same offense :

In passing upon the two points he observes : “A judge is certainly constituted a tribunal to pronounce upon the legality of a commitment. He is not to intermeddle when the prisoner is a convict or in execution by legal process — when he is detained by legal processes — out of criminal courts for some matter or offense not bailable. If a prisoner is brought before a judge on habeas corpus, who is to determine on the legality of a commitment? Is he to take it for granted that every commitment o£ every court and magistrate for offenses not bailable is legal, and to remand the prisoner accordingly? Will not this render the habeas corpus act of little value, and circumscribe its operation in a most pernicious manner ? The judge has jurisdiction, and, if he has jurisdiction, his judgment may be erroneous, but it cannot be void. If he decides that the process is illegal, he may-err, and so may all courts, but erroneous judgments are not void but voidable. If, then, the judge had jurisdiction in the cause, whether he decided erroneously or not, is immaterial; his discharge being in favor of personal liberty is final and conclusive. He is, in that respect, a court of dernier resort.” He also observes in speaking of the provision of the statute of New York, similar to our own, “that no person who shall be set at large upon any habeas corpits, shall again be imprisoned for the same offense, unless by the legal order or process of the court wherein he is bound by recognizance to appear, or other court having jurisdiction of the cause.

This provision appears to set this branch of the inquiry at rest. It is the same as in the English statute, and evidently refers, when speaking of the court where the prisoner is bound to appear or a court having jurisdiction of the cause, to the case of persons bound to appear and answer for crimes in criminal courts. If the right of the imprisonment is sustained in other cases, the benefits of the writ of habeas corpus may be greatly evaded if not completely nullified. I consider it, therefore, of great importance to personal liberty to resist this extraordinary doctrine. Abuses may indeed occur in the exercise of the powers of ajudge under the habeas corpus act, but if he errs in favor of personal liberty he errs on the safe side, and his decision ought not to be called in question. That any re-commitment in this case is illegal, I think cannot be doubted. The prisoner was discharged from custody, and the judgment of the Supreme Court remanding him to imprisonment was reversed by the court of errors.

The conclusion arrived at in the case of Yates, was reached after a most thorough and searching investigation by some of the ablest and most learned judges of that day, and commends itself to our favorable consideration as being in consonance with the justice of the case and sound logic. In the light, therefore, of the cases above cited, as well as the provisions of our statute regulating proceedings of this character, and expressly prohibiting the re-arrest and re-commitment of a prisoner after being discharged by a court or officer having jurisdiction of the person and authority to act in regard to the subject matter,- the re-arrest and re-commitment of Jilz by the St. Louis court of criminal correction was unauthorized, and his imprisonment thereunder illegal. It is no argument against this conclusion to say that a judge or officei; authorized to issue this writ of right may commit a mistake and release from confinement a citizen who ought not to be released. Under any system of jurisprudence, no matter how perfect aud complete it may be, mistakes will sometimes be made and errors committed. Questions of law or fact, whether the determination of them be confided to the court or jury, owing to the imperfections incident to all human reasoning, are often improperly and erroneously determined, yet when they are determined by those who are by law entrusted with their determination, that is an end of the matter. If, even, as in this case, a person convicted of a misdemeanor, brutal in its character, and which shocks the moral sense of the whole community, should be entitled to his discharge by reason of any error committed, it is better that- it should be so than that a principle should be recognized or a rule laid down which Avould practically render the Avrit of habeas corpus a nullity, and bring into constant danger and peril the liberty of the citizen. We deem it unnecessary, for the purpose of this case, to enter into a consideration of the question whether the act requiring the St. Louis court of criminal correction to sentence persons, who are convicted of misdemeanors in St. Louis county, to the work house of the city of St. Louis for the period of six months, is oris not obnoxious to the constitution, on the ground of its being a partial or local and not a general law. Upon this .point we express no opinion, nor is it necessary to do so.

It is argued that inasmuch as Jilz, on the 19th day of August, 1876, took his appeal to the St. Louis court of appeals from the judgment of the St. Louis court of criminal correction, the constitution, in providing that no appeal in such cases from the judgment which the St. Louis court of appeals might render should be allotved, deprives this court of its original jurisdiction to issue writs of habeas corpus, and to hear and determine the same.

If, in issuing writs of habeas corpus, and in determining the questions arising thereunder, this court could exercise appellate jurisdiction, there might be some ground for the proposition contended for. It has, hoAvever, been expressly decided in the cases herein cited, that in a proceeding of this character this court cannot exercise any appellate jurisdiction whatever. It therefore necessarily follows that the prohibition of an appeal from any decision which might be rendered by the St. Louis court of appeals does not prohibit this court from the exercise of a jurisdiction bestowed by the constitution in the exercise of Avhich (as in habeas corpus) it does not act as an appellate court. For the reasons expressed herein, we think the prisoner is entitled to a discharge from the imprisonment of which he complains, and with the concurrence of the other judges will be so ordered.