Opinion
April 30, 1931.
1. JURISDICTION: Circuit Court: Criminal Cases: Witnesses. Circuit courts have jurisdiction over criminal cases, and authority to compel the attendance or production of witnesses is an inherent element of their jurisdiction.
2. PRISONER AS WITNESS: Compulsory Attendance: Discretionary Writ. The writ of habeas corpus ad testificandum is of ancient origin and is available at all times to compel the custodian to produce a prisoner in court to give testimony; but it is issuable only in the sound discretion of the court, and on the hearing of an application therefor the court should require strict proof of the materiality of the testimony and the necessity of the attendance of the prisoner as a witness in the trial of a pending case; and if on the hearing of the application for the writ, it appears to have been made in good faith and that the testimony of the prisoner is material and important, it should be granted and the writ issued.
3. ____: ____: Statute: Constitutionality. If by the statute (Sec. 1745, R.S. 1929) declaring that courts of record shall have power to compel the bringing before the court any person detained in jail or prison, for any cause, "except a sentence for a felony," to be examined as a witness in a pending cause, it was intended to limit the use of the writ, the statute is, to that extent, unconstitutional. The Constitution (Sec. 22, Art. VI) authorizes circuit courts to issue the writ of habeas corpus ad testificandum, and the Legislature is therefore without authority to limit its use.
4. PRISONER IN PENITENTIARY: Compulsory Attendance as Witness: Inconvenience: Incapacity to Testify. A writ of habeas corpus ad testificandum issued by the circuit court and directed to the warden of the penitentiary, commanding him to produce in court a prisoner confined therein, in order that he may be examined as a witness in a pending case, cannot be disobeyed either (a) on the ground of inconvenience and surmised interference with the control of convicts in the penitentiary, or (b) on the ground that the Legislature has power to disqualify a convict as a witness — a power it has not exercised. [Overruling Ex Parte Marmaduke, 91 Mo. 228.]
5. ____: ____: Right of Defendant. Any statute or judicial decision which would deny to a defendant, charged with a felony in the circuit court, a writ of habeas corpus ad testificandum, timely applied for in good faith, to compel the warden to produce in court a prisoner confined in the penitentiary, whose testimony has been shown to be material and necessary for his defense, would violate the constitutional provision that "in criminal prosecutions the accused shall have the right to have process to compel the attendance of witnesses in his behalf."
6. ____: ____: Disobedience to Writ: Attachment. The circuit court has authority to issue a writ of habeas corpus ad testificandum commanding the warden of the penitentiary to produce in said court a prisoner in the penitentiary under sentence for a felony, to testify as a witness for the State in a criminal cause pending in said court, and on refusal of the warden to obey said writ, properly served, to issue a citation commanding the warden to appear and show cause why an attachment should not issue against him for contempt.
PROVISIONAL RULE DISCHARGED AND PROCEEDING DISMISSED.
Stratton Shartel, Attorney-General, and Walter E. Sloat, Assistant Attorney-General, for relator.
(1) It is generally the rule that the jurisdiction of the lower court must be challenged in that court before prohibition will lie in this court; this is not, however, a hard-and-fast rule, and is not enforced by this court when it is evident that an application to the lower court would be of no avail. State ex rel. Burton v. Montgomery, 316 Mo. 664; State ex rel. McEntee v. Bright, 224 Mo. 526; State ex rel. McCaffery v. Aloe, 152 Mo. 484. (2) The warden of the Missouri State Penitentiary is not only without authority to release a prisoner on a writ of habeas corpus ad testificandum, but is prohibited by law from doing so. Sec. 1745, R.S. 1929; Ex parte Marmaduke, 91 Mo. 228.
Franklin Miller, Circuit Attorney, and Forrest G. Ferris, Jr., Assistant Circuit Attorney, for respondent.
(1) Sec. 1745, R.S. 1929, relied upon by relator for support of his case, though general in its terms, does not specifically mention the State as a party, nor include the State by necessary implication. Therefore, the State being sovereign and its right in question one of prerogative, the statute does not apply to or affect it. 36 Cyc. 1171; State v. Adair, 68 N.C. 68; Ex parte Harris, 73 N.C. 65; In re McClure Co., 21 F.2d 538; State v. Kinne, 41 N.H. 238; State v. Brewer, 64 Ala. 287; United States v. Herron, 87 U.S. 251; Potter v. F. D. Co., 101 Miss. 823. (2) The right and power of the State to bring a convict from prison to court to testify in behalf of the State, is not dependent upon legislative enactment, but is given by the Constitution. State ex rel. Billings v. Rudolph, 17 S.W.2d 732; In re Hagan, 295 Mo. 435. (3) The common law authorized the writ of habeas corpus ad testificandum for the production in court of witnesses undergoing sentence for crime. It is not to be presumed that the Legislature intended to make any innovation upon the common law further than the case absolutely required. Ex parte Marmaduke, 91 Mo. 253; State ex rel. v. Breuer, 304 Mo. 412; Lewis' South. Stat. Constr. (2 Ed.) sec. 573; 36 Cyc. 1178; Potter's Dwarris on Stat., etc., 185. (4) The power to issue process and produce witnesses is an inherent power of courts which is essential to their existence and the due administration of justice, and does not depend upon legislative enactment. R.S. 1929, sec. 1844; 15 C.J. 732; Ex parte Marmaduke, 91 Mo. 251; State ex rel. v. Rudolph, 17 S.W.2d 932; Adams v. Cowles, 95 Mo. 501; Ex parte Zorn, 241 Mo. 267; In re Hagan, 295 Mo. 435.
Original proceeding in prohibition. Cause submitted on the pleadings. On December 17, 1930, a writ of habeas corpus ad testificandum 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 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, 83 Mo. 424, l.c. 429.] Furthermore, by statute, declaratory of the common law, "all courts shall have power to issue all writs which may be necessary in the exercise of their respective jurisdictions, according to the principles and usages of law." [Sec. 1844, R.S. 1929.] The writ under consideration is of ancient origin and has been available at all times to compel the custodian to produce a prisoner in court to give testimony. We have no doubt of the full and complete authority of the circuit court of the City of St. Louis to issue the writ. Having such authority, said court is authorized to compel the warden to obey the writ. However, it must be understood that the writ is grantable in the discretion of the court. Abuse of the process should not be permitted. On the hearing of the petition for the writ, the court should require strict proof of the materiality of the testimony and the necessity of the attendance of the prisoner as a witness. If it appears that the application is in good faith and the testimony is material and important, the petition for the writ should be granted.
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 haveas corpus, 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, 91 Mo. 228, 4 S.W. 91. In that case it was disclosed that the criminal court of St. Louis issued a writ of habeas corpus ad testificandum commanding the warden to produce in court a prisoner under sentence for a felony, to give testimony for the defendant in State v. Fotheringham. The warden refused to do so. Thereafter he was arrested for contempt under a writ of attachment issued by said court. Thereupon our writ of habeas corpus ad subjiciendum was served on the sheriff commanding him to justify his detention of the warden. In this way the question of the authority of the criminal court to issue a writ of habeas corpus ad testificandum was presented for our determination.
In the majority opinion in that case we held that the criminal court was without authority to issue a writ of habeas corpus ad testificandum 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.