98 Mo. 578 | Mo. | 1889
— It appears from the return of John P. Shannon, sheriff of Newton county, that the petitioner is in his custody by virtue of a final judgment of the circuit court of said county sentencing him to imprisonment in the penitentiary for a term of nine years. If this were all that appeared in the return, the petitioner would necessarily have to be remanded under the provisions of Revised Statutes, 1879, section 2648. But it further appears from the return that the circuit court in which he was tried and sentenced was held and presided over by A. J. Hakbison acting as special judge, and not by the regularly commissioned and qualified judge of said court; and it is contended that the court thus constituted was not legally competent to try the cause in which the petitioner was indicted or to render judgment therein. It appears that at the November term, 1887, of the circuit court of Newton county, Judge McGregor, the regular judge of said court presiding, an indictment was returned by the grand jury of said county against the defendant for criminal fraud under Revised Statutes, 1879, section 1561, in obtaining property from one Eliza Splitlog. At the same term the petitioner was arrested, arraigned, pleaded not guilty, was recognized and the case went over to the next term. At the ensuing May term, 1888, '
Thereupon the court found that said new indictment was in lieu of said former indictment and was for the same offense, quashed the former indictment and held the petitioner to answer said new indictment. And afterwards at the same term, Special Judge Harbison presiding, the petitioner was arraigned, and a plea of not guilty entered to said second indictment. And after-wards at the same term the cause coming on for trial in said court, said special judge presiding, the same was tried before him, the petitioner found guilty and his punishment assessed at imprisonment in the penitentiary for the term heretofore stated. Within four days thereafter, the petitioner moved fora new trial and in arrest of judgment. Pending the determination of these motions, the writ of habeas corpus herein was
I. The circuit court of Newton county had exclusive jurisdiction to hear, try and determine the cause of the state of Missouri against the petitioner upon the criminal charge preferred against him in the indictment returned at the November term, 1887, thereof. The regular judge of said court having been disqualified under the law to try that cause, A. J. IIabbison was legally selected and qualified as special judge to hear and try the same (R. S. 1879, sec. 1880), and as such special judge, possessed during such trial or hearing, and in relation thereto, all the powers, and was charged with all the duties of the judge of said court. He had no power, however, to hear or try any other cause. Sec. 1879, supra. Having been clothed with authority to try the cause, such special judge retained jurisdiction thereof until its final determination, and his powers and duties ceased only upon the conclusion of the trial thereof. Sec. 1879, supra; State v. Hays, 88 Mo. 344. His jurisdiction to try the case would not be determined by a trial and final judgment where the judgment was reversed and the cause remanded for new trial-. State v. Sneed, 91 Mo. 552. Nor where the original indictment was lost and a new indictment preferred for the same offense by another grand jury. State v. Neiderer, 94 Mo. 79. Nor where a new indictment for the same offense is preferred to remedy some defect in the original. In such case the second indictment “is not to be regarded as the institution of a new prosecution but as a continuation of the proceedings under the first indictment.” Sharpe v. Johnston, 76 Mo. 660. The effect of the filing of such new indictment is to suspend the
But it is urged that Judge Cravens committed error in holding that the second indictment was for the same offense as the first. Conceding that he did so err, it was an error of the circuit court of Newton county properly constituted, having jurisdiction to determine the question and can be reviewed only on appeal or writ of error, for which the writ of habeas corpus cannot be made a substitute.
It follows that the motion of the petitioner to be discharged must be overruled and that he be remanded to the custody of the sheriff of Newton county, and it is so ordered.