THE STATE ex rel. ROBERT KAISER, Chief of Detectives, v. CALVIN N. MILLER, Judge of St. Louis Court of Criminal Correction.
SUPREME COURT OF MISSOURI
December 31, 1926
316 Mo. 372 | 289 S.W. 898
Division One
JURISDICTION: Fugitive from Justice: Held to Await Requisition. A fugitive from justice in another state who has fled to this state may be arrested and detained upon proper evidence, to await a demand for his return by the executive of the state where the crime was committed. But in order to hold such fugitive to await the requisition of the executive of the other state, it must affirmatively appear from a complaint on file before the committing magistrate in this state that a crime has been committed in the other state, that he has been charged in that state with that crime, and that he has fled from justice and is in this state. - ———: ———: ———: Absent from State: Relation. The St. Louis Court of Criminal Correction, sitting as an examining magistrate, has no jurisdiction to entertain a complaint against a person accused of being a fugitive from justice for a crime committed in another state, who, after being arrested and giving bond, fled to another state before complaint was filed against him with such court. And the filing of the complaint, after the accused fugitive from the other state has left this state, does not relate back to the date of his arrest, but if he departs this state before the complaint is filed or the warrant is issued, the court loses all jurisdiction of the case. The jurisdiction of the magistrate, or of a court sitting as an examining magistrate, over a fugitive from justice in another state, arises upon the concurrence of (a) of a complaint, made as provided by law, and (b) the custody of the person complained against.
- ———: ———: ———: Absent from State: Property Seized: Attached by Circuit Court. The jurisdiction of a magistrate over money or property taken by the officer from the person arrested, and jurisdiction over such officer in respect thereto, arise upon the concurrent facts that a criminal cause has been instituted before the magistrate and that the party charged has been taken into custody; and without the presence of these concurring facts, the magistrate or such court has no jurisdiction. So that where an accused, arrested upon suspicion of being a fugitive from justice in another state, and after $15,293 was taken from him by the police officer, was taken before the judge of the St. Louis Court of Criminal Correction, sitting as an examining magistrate, and without any complaint being filed gave “a common-law bond” for $5,000 for his future appearance, and then fled the State, said court thereafter had no jurisdiction over the police officer, and no authority over the money taken by the officer or to make any order in reference thereto. Nor did a complaint filed after such suspected fugitive had left the state relate back to the day of his arrest, or give the court any jurisdiction over the money in the hands of the officer; and particularly was such court without jurisdiction over the money where, before an accusation was filed and a warrant was issued, writs of attachment issued out of the circuit court had been served whereby the money in the hands of the officer had been garnished, for thereby the subject-matter of the controversy had been acquired by the circuit court.
- PROHIBITION: Remedy by Appeal. Notwithstanding relator has a remedy by appeal, if the facts upon which jurisdiction depends are not disputed, and jurisdiction of the circuit court has attached to relator and to the subject-matter of the controversy, the writ of prohibition directed
to the judge of an inferior court, assuming, without jurisdiction, to make and enforce orders pertaining to the subject-matter, will issue.
Corpus Juris-Cyc. References: Arrest, 5 C. J., Section 71, p. 431, n. 62 New; Section 75, p. 436, n. 7 New. Bail, 6 C. J., Section 353, p. 1066, n. 45. Courts, 15 C. J., Section 150, p. 833, n. 44; p. 834, n. 45; Section 169, p. 851, n. 67 New. Criminal Law, 16 C. J., Section 255, p. 183, n. 1; Section 495, p. 288, n. 1. Extradition, 25 C. J., Section 19, p. 260, n. 95, 4 New; p. 261, n. 8 New. Prohibition, 32 Cyc., p. 613, n. 99; p. 614, n. 2; p. 620, n. 35.
Prohibition.
WRIT AWARDED.
Julius T. Muench and Oliver Senti for relator.
(1) In order for a magistrate to acquire jurisdiction to issue a fugitive-from-justice warrant, under
North T. Gentry, Attorney-General, and Howard Sidener, Circuit Attorney of St. Louis, for respondent.
(1) This court will take judicial notice of the fact that the St. Louis Court of Criminal Correction is a court of record of limited criminal jurisdiction, under the statutes, with power to conduct criminal examinations, and trials. Weidemeyer, alias Brooks, was duly arrested as a fugitive from justice and brought, by officers under relator, before respondent, sitting as judge of the Court of Criminal Correction, charged with being a fugitive from justice, and pending further inquiry by the court, said Weidemeyer was released by respondent on a common-law bond to appear on a day certain, and, subsequent to the release of said Weidemeyer, a fugitive warrant was issued by respondent, charging said Weidemeyer with being a fugitive from justice. Respondent contends that he is clothed with necessary jurisdiction and power under
LINDSAY, C.—This is an original proceeding by prohibition, brought by relator, as chief of detectives of the Metropolitan Police Department of the City of St. Louis, against respondent as judge of
The substance of what is stated in the application for the writ, is as follows: On October 13, 1925, one John V. Weidemeyer, alias Brooks, was arrested by the police of said city, “on suspicion of being a fugitive from justice.” There was found upon his person the sum of $15,293, which was seized, and is in the possession of relator, as an officer of said police department. On the day of his arrest, Weidemeyer was released on a bond in the sum of $5,000, described as a “common-law bond, returnable in the St. Louis Court of Criminal Correction, to answer any charge that might be placed against him.” He failed to appear upon the return day, which, by the statement for respondent in opposition to the grant of the preliminary rule herein, was October 14, 1925; and, the petition of relator alleges that “said bond was thereupon forfeited by an order duly made and entered of record by said St. Louis Court of Criminal Correction.”
On October 19, 1925, relator was served by the sheriff with a writ of garnishment issued out of the Circuit Court of the City of St. Louis, in aid of attachment, attaching all moneys in relator‘s possession belonging to Weidemeyer, and summoning him to appear in the circuit court to answer interrogatories, in a civil suit instituted by one Hoffman against Weidemeyer.
On October 20, 1925, relator was again summoned as garnishee in another suit brought against Weidemeyer in the circuit court by one Fischer.
On October 23, 1925, a warrant was issued out of the Court of Criminal Correction, for the arrest of said Weidemeyer as a fugitive from justice. This warrant was never served upon Weidemeyer, and the allegation is that he had fled from the State of Missouri, and his whereabouts was unknown to the police department, the officials of the prosecuting attorney‘s office and of the Court of Criminal Correction, at the time said warrant was issued. It is alleged that said Weidemeyer was not charged with any offense against the laws of this State, or under any ordinance, or with any offense over which the Court of Criminal Correction had jurisdiction, or in the trial of which said money could be used as evidence.
On October 30, 1925, there was made and served upon relator an order of the St. Louis Court of Criminal Correction, which recited that such order was made upon information of the circuit attorney that there was in the possession of relator, in his official capacity, the sum of $15,293, the property of Weidemeyer, and that said money was necessary, relevant and competent evidence in the case of the State of Missouri v. Weidemeyer, a fugitive from justice. The order directed and required relator to deliver said money to the sheriff, as evidence in the cause aforesaid, and to be subject to the order of the Court of Criminal Correction, and the order required that the sheriff should hold said money as evidence until otherwise ordered by that court. It is alleged that this order was made without notice to the relator, and without jurisdiction by said court over relator or over the subject-matter.
On November 5, 1925, relator was summoned as garnishee in another attachment suit brought against Weidemeyer in the circuit court.
On November 10, 1925, relator, by counsel, entered his special appearance in the St. Louis Court of Criminal Correction, and sought by motion to have the above-mentioned order set aside. This motion was overruled. The relator alleges that prior to the making of the order just mentioned, jurisdiction of the circuit court had attached to the subject-matter of the order, and to the person of relator by reason of service upon him of the various writs of garnishment. The application further states that on January 9, 1926, relator was summoned as garnishee by the sheriff of the city of St. Louis to appear in the circuit court to answer interrogatories under a writ of fieri facias issued by the St. Louis Court of Criminal Correction upon the judgment in the sum for $5,000 and costs entered upon the bond, in favor of the State of Missouri and against said Weidemeyer and his surety, one John Kelly.
The relator asks that respondent be prohibited from proceeding further. It is alleged that unless he be so prohibited, respondent will undertake to commit relator for contempt of court, for failure and refusal to comply with the above-mentioned order of the St. Louis Court of Criminal Correction; that the money to be attached under the last-named writ is the same money referred to in the order of October 30, 1925, and if respondent be not so prohibited, relator will be subjected to the danger of being committed for contempt for noncompliance with said order, and if relator does comply with said order and surrender the money taken from said Weidemeyer at the time of his arrest, he will be unable to comply with any order which may hereafter be made by the circuit court, requiring him to pay said money into the circuit court on account of the writs of garnishment issued out of that court, and that relator will be subject to the con-
No answer or return is made by respondent.
The St. Louis Court of Criminal Correction is a court of record, but is of statutory origin. The various provisions concerning its jurisdiction, powers and duties were enacted in 1869 (Laws 1869, p. 194) and are set forth in
By the statute (
Counsel for respondent have stated what they regard to be the vital points at issue as follows: First, Did the judge of the St. Louis Court of Criminal Correction have jurisdiction of the person and property of John V. Weidemeyer, alias Brooks, on the 13th day of October, 1925? Second, Did such judge exceed that jurisdiction (if he had it) in the proceeding against Weidemeyer in the forfeiture of his bond, the judgment rendered thereon, and the order of execution directing the sheriff to seize so much of the money of said Weidemeyer in the hands of relator as would satisfy said judgment in favor of the State?
Counsel for relator urge that this is a misconception of the point at issue. They insist that the validity of the order of October 30th, made without notice to relator, and directing him to deliver the money to the sheriff to be used as evidence in the case of the State against Weidemeyer, fugitive from justice, is the subject of the essential issue; and, they say also that even if the Court of Criminal Correction could declare a forfeiture of the bond, and the money held by the relator could be reached by writ of garnishment issued out of the circuit court to satisfy the judgment of forfeiture, so much, if conceded, would not make lawful the order entered on October 30th.
Pursuing that line, they say that the two matters arose out of different proceedings; that the forfeiture of the bond grew out of Weidemeyer‘s failure to appear on its return date, and that the order of October 30th was not a direction to the relator to surrender the money to the sheriff to satisfy a judgment based on forfeiture of the bond, but was a requirement that the money be delivered, to be used as evidence, and that the cause, if any, in which it could be so used, would be one prosecuted in another state.
They further suggest that the fact that relator was served with the writ of garnishment in the proceeding to collect the judgment entered upon the bond, was only pleaded for the purpose of showing that the circuit court might require relator to pay the money to the sheriff under its writ, which he could not do, if compelled to obey the order made on October 30th. Thus the relator appears to be in the situation of neither denying nor asserting that respondent had jurisdiction over Weidemeyer on October 13th, and is asserting that the validity of the order of October 30th does not depend upon the validity of the order forfeiting the bond. It is contended by counsel for relator that there is no statutory authority given the Court of Criminal Correction to order police officers to deposit with the sheriff, money, taken from a prisoner to be held as evidence in a case which must be tried in another state. It is urged that the police officer is not an officer “connected with” that court, within
We are of the opinion that under the facts in this case it is not necessary to go into those questions. It is not necessary to decide here what authority the Court of Criminal Correction might have to order money, taken by a police officer from one arrested as a fugitive from justice under a warrant, issued upon an accusation theretofore duly filed, because that is not this case. Reduced to more simple form, the contention of respondent appears to be that it is necessary for respondent to have, and that he did have jurisdiction, to take the bond, and declare its forfeiture, and that being so, there is no other question of excess of jurisdiction, while the position of relator is, that respondent on October 30th had no jurisdiction to make the order he did make, although he might have had jurisdiction over Weidemeyer on October 13th, for the purpose of taking bail, and afterward, and before October 30th, for declaring a forfeiture.
The preliminary rule issued herein ran against further cognizance of our action in the matter of the order made on the 30th day of October, 1925, requiring relator to turn over to the sheriff certain money taken from said Weidemeyer at the time of his arrest, the said money to be held as evidence subject to the order of said court.
The application for the writ herein is not as complete and explicit as could be desired. It sets forth the order made on October 30th, the notice delivered to relator by the sheriff under the execution issued against Weidemeyer and his surety, and also the summons delivered to relator as garnishee under said execution. Otherwise, it does not set forth, nor is it accompanied by copies of any of the files, or orders of record made in any of the proceedings to which reference is made. The question however, of jurisdiction of respondent as judge of said court, does not rest upon contested facts, and is one of law. [State ex rel. v. Falkenhainer, 274 S. W. 758; State ex rel. v. Homer, 249 Mo. 1, l. c. 65.]
It must be taken as true that Weidemeyer was arrested on October 13th, upon suspicion of being a fugitive from justice; that no warrant for his arrest had theretofore been issued, and no accusation theretofore or then was filed against him in the Court of Criminal Correction; and that the bond taken was taken under those circumstances, and was conditioned for his appearance to answer not to a formal charge of being a fugitive from justice, but any charge which might be placed against him; and he was released upon that condition. It is to be taken as true that before complaint was made and a warrant issued, as was done on October 23rd, Weidemeyer had fled from the State, and his whereabouts was unknown to the officials. The question therefore seems to be one of the jurisdiction of respondent over Weidemeyer and the money found upon his person at the time of his arrest when no complaint stood against him, either as having committed an offense against the laws of this State, or against any ordinance of the city of St. Louis; with the further question, whether the subsequent filing of a complaint and the issuance of the warrant thereunder, on October 23d, when Weidemeyer was not in the State, could relate back to the time of the arrest, so that thereby, respondent thereafter, and on October 30th, had jurisdiction to make the order which was made on that day.
On October 13th, Weidemeyer was in the custody of a police officer, and presumably in person before the respondent, but with no complaint filed or pending against him in the Court of Criminal Correction. On October 30th a complaint had been filed and warrant had been issued, but under the circumstances herein to be taken as admitted, Weidemeyer was not in the State at the time he was charged with being a fugitive from justice under the provisions of
The essentials of jurisdiction of an examining magistrate in cases of this character were considered in State v. Swope, 72 Mo. 399. That case was a proceeding in scire facias upon a recognizance taken by justice of the peace, upon postponement of an examination, under a complaint which attempted to charge the principal in the bond, one Lewis, with being a fugitive from justice from the State of Iowa; and the bond was given for his appearance to answer the complaint. After quoting the statute, now
In State v. Randolph, 22 Mo. 474, the action was one upon a forfeited recognizance given in response to a formal charge made, and the special subject of inquiry in that case was whether the recognizance, upon its face, must show the particular facts by which the justice acquired jurisdiction. It was held not necessary that the recognizance on its face should show the particular facts giving jurisdiction, but, in respect of the question of the jurisdiction of the justice to take the recognizance, it was said: “There must have been a case pending before him in order to give validity to the recognizance he took.” And again, in the opinion, at page 481, we find the following: “It is undoubtedly a well-settled and highly-important principle, that, before any one can be affected by the judgment or order of a court or officer, of special and limited jurisdiction, it must not only appear that the court or officer had authority to act in cases of that kind, but that jurisdiction had been acquired in the particular case.” [See also 16 C. J. p. 287, sec. 495; p. 290, sec. 498; 6 C. J. p. 1066, sec. 353; McGuire v. State, 124 Ind. 536; State v. Goetz, 65 Kan. 125; Wilson v. State, 16 Tex. 246.]
The rule as to the construction to be given to statutes of this character is stated at page 417, of the note appended to the opinion in Simmons v. Van Dyke, 46 American State Report: “These stat-
What is said here is not to be construed as meaning that in every case a warrant must be obtained before an arrest is made of one believed to be a fugitive from justice; but, in such cases, sanction for the detention of such person should be obtained from a magistrate of competent authority for the purpose, and that sanction must rest upon an accusation made against the person to be detained, according to the forms of the law. [Harris v. Louisville Railroad Co., 35 Fed. 116.]
Under the provisions of
On October 13th Weidemeyer being in the custody of the officer was released, without there being made before respondent any accusation against him under the provisions of
It is further to be observed that before the accusation was made and warrant issued, there had been service of writs of attachment in the suits filed in the circuit court, and thereby whatever jurisdiction could be acquired over the money, the subject-matter of the controversy here, and over relator in respect thereto, had been acquired by the circuit court.
Counsel for respondent urge that it was the duty of relator to surrender the personal property as well as the body of Weidemeyer, to the proper jurisdiction and control of the court, and that the refusal to do so nullified the protective provisions of
Their contention assumes there was proper jurisdiction on the part of respondent, which we hold did not exist. In the case of an officer taking possession of the property found by him upon an arrested person, the responsibility of such officer must be determined by a court acquiring jurisdiction over him in respect to such matters or property, and over his acts done, in accordance with the circumstances to be found and determined by such court.
It is also suggested for respondent that relator has his remedy by appeal, and that the writ should not go for that reason. As has been already stated, the petition stands unchallenged by answer on the part of respondent. The order was made in a proceeding to which relator was not a party, and without notice to him, and the motion to set aside the order was denied.
The facts upon which jurisdiction depended are not in dispute, either as to the making of the order, or as to the grounds upon which respondent would act as for refusal to comply with the order. The jurisdiction of the circuit court attached to relator, and to the sub-
Under the circumstances shown the remedy invoked is appropriate. It is a remedy which the court may decline to award where other modes of relief are equally prompt and effective, but whether they are so, is a question to be determined in each particular exigency, and under all facts in this case, we are of the opinion that the permanent writ should go as against enforcement or attempt to enforce the order in question. Seddon, C., concurs.
PER CURIAM:—The foregoing opinion by LINDSAY, C., is adopted as the opinion of the court. All of the judges concur, except Graves, J., absent.
SUPREME COURT OF MISSOURI
December 31, 1926
Division One
- MALICIOUS PROSECUTION: Involuntary Bankruptcy: Attorneys: Pleading: Cause of Action. A petition charging that “the allegations” set forth in a petition in a proceeding instituted by defendants to have the plaintiff declared a bankrupt “were false and known to be false by said petitioners and by defendants at the time, or might have been known to them to be false if they had used reasonable diligence to ascertain the facts in regard thereto,” and sufficiently charging malice and want of probable cause, states a cause of action against all the defendants, and is not subject to the demurrer of those defendants who were the attorneys for the others in the bankruptcy proceeding, if it does not allege or disclose that they were such attorneys.
- ———: Gist of Action: Probable Cause: Malice. The gist of the action for malicious prosecution is the existence of malice and the want of probable cause. Probable cause is a belief in the existence of the charge or facts alleged, based on sufficient circumstances reasonably to induce such belief in a person of ordinary prudence in the same situation; and if the facts are undisputed, it is the duty of the court to declare their legal effect and state whether or not want of probable cause exists. Malice is not an inference of law from a want of probable cause; but it may be inferred by the jury from facts which go to establish the want of probable cause.
- ———: Dismissal of Civil Suit. In an action for malicious prosecution based on the institution of a civil action, a showing that defendants voluntarily dismissed such action, without evidence of other facts tending to show want of probable cause, does not relieve plaintiff of the burden of proof, and such dismissal does not alone make a case for the jury.
- ———: Liability of Attorney: Filing Petition in Bankruptcy: Upon Authority of Client. If the relation of attorney and client is shown to exist, and it appears that the attorney, in instituting a proceeding, in the name of the client, to have the client‘s debtor declared to be a bankrupt, acted