State v. Collins

225 Mo. 633 | Mo. | 1910

GANTT, P. J.

On February 11,1909, an information duly verified, was filed in the office of the clerk of the circuit court of the city of St. Louis, charging the defendant with the crime of larceny from the person of one B. C. McMahon in the nighttime. On May 3, 1909, the said defendant was duly arraigned and pleaded guilty as charged in the information and the court assessed his punishment at two years in the penitentiary. Judgment was accordingly pronounced, and thereafter the defendant, upon his application, was paroled. It appears that the clerk of the court in entering the judgment and sentence by inadvertence or misprision wrote the word “party” instead of “person,” thus causing the judgment to read: “It is therefore considered by the court that John Collins for his offense of larceny from the party, in the nighttime, and in pursuance of his plea of guilty thereto, be imprisoned,” etc.

On May 26, 1909, defendant’s parole was revoked, and on June 26 his motion to set aside the revocation was overruled. On July 15, 1909', the defendant applied for and obtained a writ of error from the clerk of this court and this cause is now here on the said writ and the return thereto.

Afterwards, on August 23, 1909, the circuit court caused to be entered an order nunc pro tunc correcting the said judgment entry so as to cause the same to read:' “That the said John Collins for his offense of larceny from the person in the nighttime, and in pursuance of his plea of guilty thereto, be imprisoned in the penitentiary of this State for the term of two years, and he pay the costs of this prosecution and stand committed until his sentence be complied with.”

The plaintiff in error has filed no brief and assigns no errors in this conrt, but as in duty bound, we have read the entire record and we find the information is one based upon section 1901, Eevised Statutes 1899, and is entirely satisfactory. The only possible error of which the plaintiff in error could have complained was the insertion in the entry of the judgment of the word “party” instead of “person,” but when the attention of the court was called to this inadvertence by motion it caused the record to be corrected nunc pro tunc. The power and authority of the circuit court to correct this record by nunc pro time entries is fully established, notwithstanding the case may be pending in this conrt on appeal or writ of error. [State v. Gordon, 196 Mo. l. c. 196; State v. Eaton, 191 Mo. 154.] The record entries in this cause in the circuit court and the information afforded ample basis for the nunc pro tunc order made in this case. As corrected, the judgment is in approved form and contains all the recitals essential to a valid judgment. No error appearing in the case the judgment is affirmed.

In his application for a writ of habeas corpu,s to be admitted to bail pending the hearing of the writ of error, he alleged that after he was sentenced he was paroled, by the judge of the circuit court who pronounced the sentence upon him, but that “in a short time thereafter he was rearrested and without warrant or other process, and was incarcerated in the city jail without a hearing or having his day in court.”

Upon this allegation he now insists in this case that he is entitled to be discharged from arrest under the sentence in this case and allowed to go at large upon his parole because he insists that section 2818, Eevised Statutes 1899, which authorizes the court, or judge thereof in vacation, to terminate said parole at any time, without notice to such person, by merely directing the cleric of the court to make out and deliver to the sheriff or other proper person a certified copy of the sentence, with a certificate that such person has been paroled-and his parole terminated, etc., is unconstitutional. While we are clearly of opinion that this proposition of the unconstitutionality of section 2818 is an afterthought, and the application for the writ of habeas corpus was for the purpose of being admitted to bail, yet in order to settle the rights of defendant, we will consider his contention. The defendant’s sole claim to be allowed freedom from arrest under the judgment is that his parole was illegally revoked. He. asserts that the parole statute is wise and salutary in so far as it grants him immunity for his offense, and he applied for and accepted the benefits of the statute, but insists the same statute is invalid when the court asserts its right to revoke his parole without giving him a trial as to its right and power so to do. Defendant’s reasoning is unsound. He proceeds on the theory that some natural and legal right of his is being denied him, whereas the parole for which he applied and which was granted to him was purely an act of grace on the part of the State through its court. Defendant had been lawfully convicted and sentenced. He had then the option to serve his sentence or apply for a parole under the laws of this State. He knew the provisions of that law and applied for and accepted his parole subject to its provisions and conditions, among which was that which authorized the court to revoke the parole without further notice to him. It was upon this condition he was paroled. If this was invalid the parole was ineffective and the judgment was in full force. By accepting its terms he is now precluded from assailing its validity. This is fully established by adjudications of the courts of last resort on similar statutes. [Arthur v. Craig, 48 Iowa 264; State ex rel. v. Hunter, 124 Iowa 569; Kennedy’s Case, 135 Mass. 48; Woodward v. Murdock, 124 Ind. 439.]

As said by the Supreme Court of Alabama in Fuller v. State, 122 Ala. l. c. 37 and 38: “The parole does not in any wise displace or abridge the sentence; it merely stops its execution for a time only, it may be, or indefinitely, it may proye — it suspends, not destroys .... But if he elects to accept the parole and avails himself of the liberty it confers, he must do so upon the conditions upon which alone it is granted to him.”

As to the suggestion that the officer under this statute might arrest the wrong man and thus deprive an innocent citizen of the right to show that he was not the convict described in the warrant, it suffices to say no doubt can exist that an innocent party thus arrested could unquestionably invoke the writ of habeas corpus and establish his innocence, but we have no such question here. The petition establishes the identity of the prisoner with that of the convict in the judgment. We have no doubt whatever of the constitutionality of section 2818, Revised Statutes 1899, and accordingly we hold that, as the parole granted the defendant has been revoked, it will afford no obstacle to his arrest and incarceration in the penitentiary in accordance with the judgment already affirmed.

Burgess and Fox, JJ., concur.