38 S.W.2d 717 | Mo. | 1931
Original proceeding in prohibition. Cause submitted on the pleadings. On December 17, 1930, a writ of habeas corpus adtestificandum issued by the Circuit Court of the City of St. Louis was served on the warden of the penitentiary, commanding him to produce in said court Dode Kelley, a prisoner in the penitentiary under sentence for a felony, to testify as a witness for the State in the case of State v. Sellards. The warden refused to obey the writ. Thereupon a citation was issued by said court and served on the warden, commanding him to appear and show cause why an attachment should not issue against him for contempt of court in refusing to obey the writ. Further proceedings under said citation were prohibited by our rule in prohibition.
The warden questions the authority of the circuit court to issue the writ. Circuit courts have jurisdiction over criminal cases. [Sec. 22, Art. VI, Constitution.] They are authorized by the Constitution to try such cases. They cannot do so without witnesses. Authority to compel the attendance or production of witnesses is an element of jurisdiction. It is essential to the existence of said courts and *731
to the due administration of justice. [15 C.J. 732.] Without such authority there is no jurisdiction. In other words, said courts have the inherent power to compel the attendance or production of witnesses. Having such power they are authorized to issue process, "according to the principles and usages of law," for that purpose. [Yeoman v. Younger,
The warden cites as sustaining his contention Section 1745, Revised Statutes 1929, which follows:
"Courts of record, and any judge or justice thereof, shall have power, upon the application of any party to a suit or proceeding, civil or criminal, pending in any court of record, or public body authorized to examine witnesses, to issue a writ of haveascorpus, for the purpose of bringing before such court or public body any person who may be detained in jail or prison, within the State, for any cause, except a sentence for a felony, to be examined as a witness in such suit or proceeding, on behalf of the applicant."
If by this section it was intended to limit the use of the writ, the section is, to that extent, unconstitutional. As stated, the Constitution authorizes circuit courts to issue the writ. It follows that the Legislature is without authority to limit its use.
He also cites Ex parte Marmaduke,
In the majority opinion in that case we held that the criminal court was without authority to issue a writ of habeas corpus adtestificandum to produce a prisoner under a sentence for a felony. In the main, we justified the ruling on the grounds of inconvenience and surmised interference with the control of the convicts in the penitentiary. Obviously, those grounds do not justify the ruling.
In the concurring opinion the ruling was justified by reasoning that the power of the Legislature to disqualify a convict as a witness authorized it to prohibit his removal from the penitentiary to testify as a witness. This would be sound reasoning if the Legislature had so disqualified convicts. It has not done so. On the contrary, disqualification without exception was removed by the Legislature in 1879. And by statutory authority, a convict's deposition may be taken in the penitentiary. [Sec. 3621, R.S. 1929.] Indeed it was not contended in the Marmaduke case that the convict was disqualified. It follows that the majority and concurring opinions in said case are in conflict with the section of the Constitution which gives circuit courts jurisdiction over criminal cases. Furthermore, in that case the process for the production of the witness was at the instance of the defendant. Therefore, said opinions are also in conflict with section 22, Article II, of the Constitution which provides that "in criminal prosecutions the accused shall have the right . . . to have process to compel the attendance of witnesses in his behalf." The majority and concurring opinions in that case should be and are overruled.
Our provisional rule herein was improvidently granted, and the proceedings should be dismissed. It is so ordered. All concur. *733