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 sen
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
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,
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
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
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
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.