Petitioners Charles Dixon, Carroll Krepps, George Eccarclt and George Brown seek release by the Habeas Corpus Act from the custody of Leslie Rudolph, Warden of the Missouri State Penitentiary.
Issuance and service of the writ and production of thе bodies of petitioners were Avaived, and the warden filed return stating that he holds each of the petitioners under and by virtue of two commitments issued by the Circuit Court of Grundy County, Missouri, on November 30, 1929, at the November, 1929, term thereof, and by a commitment issued by the Circuit Court of Livingston Cоunty, Missouri, on April 8, 1930, certified copies of which commitments were attached to and made a part of his return.
It further appеars from said return that on November 30, 1929, each of said petitioners pleaded guilty in the Circuit Court of Grundy County to an information charging grаnd larceny, to-Avit, stealing an automobile, and to an information charging grand larceny, to-Avit, stealing United States money, and pursuant thereto each was sentenced to be confined in the State penitentiary for a period of four years from November 30, 1929. It also appears from said return that on April 8, 1930, petitioners each pleaded guilty in the Circuit Court of Livingston County to a charge of robbery with firearms, based on an indictment, and on such plea each was sentenced to be confined in the penitentiary of the State of Missouri for a period of-fifteen years “said punishment to commence and begin at the termination of the sеntence and judgment of imprisonment in the State penitentiary imposed by the Circuit Court of Grundy County, Missouri, against said defendant at the regular November term, 1929, thereof of four years for grand larceny of money and four years for grand larceny of an automobile, sаid judgment and sentence being dated November 30, 1929.”
*654
The verified petition herein, which in the circumstances above mentioned is to be taken as and for the writ, states that the charge of robbery with firearms, to which petitioners pleaded guilty in the Circuit Court of Livingston County оn April 8, 1930, was based upon the same act which the charge of grand larceny of money rested to which petitioners pleаded guilty in the Circuit Court of Grundy County on November 30, 1929, The ground upon which petitioners seek release is that under the Fifth Amendment of the Constitution оf the United States no person shall “be subject for the same offence to be twice put in jeopardy of life or limb,” and pеtitioners having served the time for which they Were sentenced in Grundy County they cannot now be held under the commitment from Livingston County. This constitutional provision, however is without application to the trial of criminal prosecution by a state because, as said in Gaines v. Washington,
A similar provision appears in Section 23 of Article II of the Constitution of Missouri, as follows, “nor shall any person, after being once acquitted by a jury, be again, for. the same offense, put in jeopardy of life or liberty;” and the common-law rule that nо person shall for the same offense be twice put in jeopardy is in force in this State. [State v. Linton,
“In some jurisdictions the statutes permit former jeopardy to be proved under a plea of not guilty, but the general rule is that this defense must be presented at the proper time by a special plea in bar, and if such plеa is not duly interposed the defense is waived and cannot be urged at any stage of the case, either during the taking of testimony оr on a motion for a new trial, or on a motion in arrest of judgment, and, a fortiori, it cannot be urged for the first time in the appellate court, or on an application for a writ of habeas corpus after a second conviction.”
*655
See supporting- cases cited in note on p. 134 of 6 A. & E. Ann. Cas., particularly, In re Maughan, 6 Utab, 167,
“A person may be prosecutеd for the same offense of which he has been acquitted or convicted if: . . .
"(b) He fails'to object to a second prosеcution at the proper time, or having objected abandons his objection;
"(c) He expressly consents to a second prosecution; . . .
"(g) He in any other way waives his right to object to а second prosecution. ’ ’
The only conclusion that can be drawn from the pleadings upon which the instant case is submitted is that рetitioners failed to object to this second prosecution, if such it was, or to interpose the defense of former jeоpardy in any manner whatsoever at the trial.
Moreover, Section 1457, Revised Statutes 1929, provides that in
habeas corpus
proceedings it shall be the duty of the court or magistrate forthwith to remand the party if it shall appear that he is detained in custody "by virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction.” None of the excej)tions to this provision enumeratеd in Section 1459 of the same statute: are applicable to the facts here shown. It is a general rule that the writ of
habeas corpus
does nоt perform the office or function of an appeal or a writ of error. It is an original proceeding in which judgments are nоt liable to collateral attack. [Ex parte Snyder,
If the circumstances of the case properly call for exеcutive clemency relief maj'- be had in that way, but we are powerless to order a discharge-in this proceeding. For the reasons above stated petitioners are remanded.