ON MOTION FOR REHEARING. We held in the principal opinion (text to marginal notes 8-12) that the judgment of the Newton County circuit court, convicting Cory of Robbery, could not be impeached on habeas corpus before respondent Judge Blair by proof of unverified recitals in Cory's motion for new trial in the criminal case alleging he had been denied adequate time to prepare for trial, which recitals also were outside the record proper. But in the concluding part of the opinion we added that competent evidence on that issue might have been introduced before Judge Blair, since it would not have contradicted the judgment and record in the criminal case.
In their motion for rehearing here, counsel for respondent Judge Blair (actually for Cory) showed that Cory did testify on that issue in the habeas corpus case, but that the testimony was omitted from Judge Blair's return in the instant certiorari proceeding, because our decisions1 hold certiorari brings up only the record proper showing jurisdictional defects or errors which cannot be reached by appeal; and that "we take the record as we find it, excluding the mere evidence which can, in the nature of things, relate to the merits only." Nevertheless, in view of our holding, supra, in the principal opinion that competent evidence of that character could have been introduced in the habeas corpus case, counsel asked in the motion that Judge Blair be permitted to amend his return here by including therein Cory's aforesaid testimony on that point before him. We granted that request and passed the cause to our next conference. The amendment of the return has been made, and Cory's evidence is before us.
The learned Assistant Attorney General stands on the authorities just cited below, and contends that whether Cory's testimony was admissible or not in the habeas corpus case, those decisions preclude its admission in this certiorari proceeding because it was not a part of the record proper. There can be no doubt that the testimony was admissible below since it did not impeach the judgment in the criminal case, Young v. Parker,355 Mo. 245, 246(1), 195 S.W.2d 743(1), 744(2). And it is also true that a habeas corpus proceeding is not appealable, and therefore comes within the formula of the above decisions as a cause that may be reviewed by certiorari. State ex rel. Gentry v. Westhues, supra, 315 Mo. l.c. 678(1), 286 S.W. l.c. 389(1). *Page 301
The only question is whether we shall depart from the doctrine of the cited decisions1 insofar as they hold the review in certiorari must be confined to the record proper, disregarding "mere evidence." (The Woodmansee and Trust Company cases do not go that far). Confining ourselves to cases of the present character — criminal cases involving the issue of due process under the State and Federal Constitutions — we think we should if the extraneous evidence bears on that issue and does not impeach the judgment rendered. In our opinion a denial of due process is tantamount to an excess of jurisdiction, at least. Our case law on that point has been restrictive, whereas the general doctrine admits facts bearing strictly on that issue. 14 C.J.S., p. 255, sec. 126; [278] 11 C.J., p. 176-7, sec. 267; 10 Am. Jur., p. 543, sec. 18.
Our power to issue writs of certiorari is constitutional, Art. VI, Sec. 3, Const. Mo. 1875; Art. V, Sec. 4, Const. Mo. 1945. These provisions refer to the common law writ. But they do not preclude us from enlarging the scope of the writ. Sec. 2008, R.S. 1939-Mo. R.S.A. provides: "All courts shall have power to issue all writs which may be necessary in the exercise of their respective jurisdictions, according to the principles and usages of law." And it was held in State ex rel. Harrison County Bank v. Springer, 134 Mo. 212, 222(5), 35 S.W. 589, 590(3), citing and construing that statute: "Our courts have undoubted authority to mold the procedure upon that writ so as to conform to `the principles and usages of law,' as developed under the common law system, so far as may be consistent with the letter and intent of the existing statutory law." See also State ex rel. Barker v. Wuderman, 254 Mo. 561, 569 (1), 163 S.W. 849, 850(1); State ex rel. Gardner v. Hall, 282 Mo. 425, 431(4), 221 S.W. 708, 710(6); State ex rel. St. L. Union Trust Co. v. Neaf, supra, 346 Mo. l.c. 92(1), 139 S.W.2d l.c. 961(1).
[8] We therefore proceed to an examination of prisoner Cory's testimony as returned to us. It states in substance that following his arrest on January 16, 1937, he was kept in a village jail for eight hours; and then transferred to the Joplin city jail for five days, where he was held incommunicado. Thence he was moved to the Newton County jail at Neosho (about January 21). He remained there until his trial started on February 4 — a span of fourteen days. During that time his mother and father obtained a Joplin lawyer for him who was an old acquaintance of theirs and served without pay. The lawyer talked to him once in the jail where the officers could overhear, about eight days before the trial, and came no more.
When the trial was to begin he was taken to court. His lawyer was there and the jury was being impaneled. He didn't know what the charge was. He told his lawyer he had several witnesses who could sustain his alibi, and the lawyer said, "We would get them or they would be there by the time we needed them." But they didn't *Page 302 come. There was a heavy storm which prevented their attendance. Nothing further was said about them. He and his father and mother testified, but they could not help on his alibi as they didn't know where he was at the time of the robbery. He didn't know whether his lawyer subpoenaed his witnesses or asked the judge for more time. He heard nothing of that kind. [There is no showing of any request for a continuance or delay in the court minutes brought up.] The first complaint was made in the motion for new trial.
In our opinion this testimony does not help petitioner. He had a lawyer his family had procured for him a week before the trial, and he accepted the lawyer's services. They went through the trial and risked the issue until after he was convicted. As stated in our original opinion, citing State v. Stucker,352 Mo. 1056, 1058(3), 180 S.W.2d 719, 720 (4), it is incumbent on the accused in such situations to ask for time if he needs it. So far as appears the trial court knew nothing about it. We do not understand it to be the duty of this court to permit a petitioner in habeas corpus to raise such questions by certiorari nine years after his conviction.
For these reasons the motion for rehearing is overruled. The records of both the Cole County Circuit Court and the Newton County Circuit Court in the two habeas corpus proceedings have already been quashed in the original opinion.
1 State ex rel. Evans v. Broaddus, 245 Mo. 123, 136(2), 149 S.W. 473, 476(2, 3), Ann. Cas. 1941A, 823; State ex rel. Gentry v. Westhues, 315 Mo. 672, 678(1), 680, 286 S.W. 396, 398(3, 6); State ex rel. Shartel v. Skinker, 324 Mo. 955, 959(1),25 S.W.2d 472, 476(2); State ex rel. Woodmansee v. Ridge, 343 Mo. 702, 707(3), 123 S.W.2d 20, 22(3); State ex rel. St. Louis Union Trust Co. v. Neaf, 346 Mo. 86, 92(2), 139 S.W.2d 958, 961(2, 3).