Buckley v. Hall
114 S.W. 954
Mo.
1908
Check Treatment
FOX, P. J.

This is an original proceeding in this court by the petitioner for discharge from the penitentiary of this State, where he is now confined in pursuance of a sentence and judgment of the circuit court of the city of St. Louis. The petition, as well as the return, discloses that the petitioner was convicted of the crime of robbery in the first degree, at the February term, 1908, of the circuit court of the city of St. Louis, and that his punishment was assessed at a term of five years in the penitentiary of this State; that judgment was pronounced and sentence passed in accordance with the verdict and that the petitioner *97is now a prisoner in the Missouri State Penitentiary, ■and is in the custody of Mathew W. Hall, warden of the State Penitentiary, in pursuance of the judgment ■and warrant of commitment of said circuit court. •

It is charged in the petition that the circuit court of the city of St. Louis was without jurisdiction to render the judgment of conviction as heretofore indicated. The jurisdiction of the court is challenged ■upon two grounds.

First. That the information upon which the defendant was tried and convicted did not show upon its face that the petitioner had been accorded a preliminary examination as required by the Act of 1907. [Laws 1907, p. 243,]

Second. That the petitioner was accorded a pretended preliminary examination in the Court of General Sessions of the city of St. Louis; but that by a recent decision of this court the act of the General Assembly, by which said Court of General Sessions was created and established, was adjudged unconstitutional and void, hence, it is claimed by the petitioner that he was not in fact accorded a preliminary examination under the provisions of said Act of 1907, and that the proceedings of the court in the trial and conviction •of the defendant were without jurisdiction and void, and that the imprisonment of the petitioner is without authority of law. Then follows the ordinary prayer for discharge from custody.

This is a sufficient indication of the facts disclosed by the petition, as well as the return, to enable ms to determine the legal propositions involved.

OPINION.'

The record presents but two questions for our consideration.

First. It is insisted that in a prosecution by information for a felony, it is essential to the jurisdic*98tion of the court that the information should show upon its face that the accused had been accorded a. preliminary examination.

Second. It is urged that the circuit court of the city of St. Louis that rendered and entered the judgment which resulted in the petitioner being confined in the penitentiary, was without jurisdiction to- try the petitioner upon the charge preferred against him in the information, for the reason that he had not been previously accorded a preliminary examination as provided by the laws of 1907.

I.

The propositions involved in this application for discharge are by no means new in this court. The same questions have repeatedly been in judgment before this court, and decided adversely to the contention of the petitioner.

In State v. Jeffries, 210 Mo. 302, it was earnestly insisted that it was essential to confer jurisdiction upon the trial court, to allege in the body of the information that the accused had a preliminary examination or had waived it. Responding to that insistence, this court, speaking through Judge Gantt, ruled that it was unnecessary for the information to allege that there had been accorded to the defendant a preliminary-examination prior to the filing of the information, and it was said in that case that that “is not a -matter which goes to the merits of the trial, but the regularity of the previous proceedings,” citing in support of such ruling Washburn v. People, 10 Mich. 383; State v. Barnett, 3 Kan. 250.

In Ex parte McLaughlin, 210 Mo. 657, precisely the same questions were presented that are insisted upon in the ease at bar. It was again ruled that it was not essential that the- information should show upon, its face that a preliminary examination had been *99accorded the accused, and it was also held that the writ of habeas corpus could not be made a substitute for an appeal or writ of error, citing Ex parte Clay, 98 Mo. 578; Ex parte Mitchell, 104 Mo. 121. It was also suggested in that case that the circuit court of the city of St. Louis was a court of general criminal jurisdiction, and had full power to pass upon questions applicable to the case before it, and should the court commit error in denying a motion to «quash or a demurrer to the information, for the reason that a preliminary examination had not been accorded the accused prior to the filing of the information, that those were matters which could be preserved in the record and the rulings of the trial court could be reviewed and corrected upon appeal.

In the case of State v. McKee, 212 Mo. 138, this court was again requested to reconsider the legal propositions involved in the Jeffries and McLaughlin cases, and after a full and thorough consideration of the propositions involved in those cases, we declined to depart from the conclusions reached, and it was expressly ruled in that case that the fact that the defendant had been accorded the right of a preliminary examination was not jurisdictional and need not be alleged in the information, and any failure to accord the defendant the right of a preliminary examination as provided for by the statute, only went to the regularity of the proceedings, which could be taken advantage of by directing the attention of the court to that fact by an appropriate motion and offering’ proof establishing the fact that he had not.been accorded a preliminary examination. If the action of the court upon the question concerning the failure to accord the accused a preliminary examination, to which its attention was appropriately called, was adverse to the defendant, such action could be properly preserved by a bill of exceptions and reviewed by this court, but as *100heretofore indicated, it has been uniformly held that the writ of habeas corpus cannot be substituted to perform the office of an appeal or writ of error.

If the adjudications heretofore pointed out are to longer be followed (and we see no reason for a departure from them), then there is no escape from the conclusion that this application must be denied.

It is, therefore, ordered that the discharge as sought by this original proceeding be denied, and the petitioner is remanded to the custody of the warden of the penitentiary of the State of Missouri, there to remain until discharged according to the due course of law.

Discharge denied.

Gantt and Burgess, JJ., concur.