State Ex Rel. Gentry v. Montgomery

*813 GANTT, J. Certiorari instituted by the State at the relation of the Attorney-General. The writ Avas directed to Hon. John E. Montgomery as Judge and J. L. Kendrick as Clerk of the Circuit Court of Chariton County. They made return to the writ. The facts are as follows: Tom Horton Avas tried on an indictment in two counts in the Circuit Court of Chariton County before Hon. John E. Montgomery and a jury. He Avas found guilty of the offense of possessing liquor on the first count, and of the offense of possessing a still on the second count, and his punishment fixed on each count at a fine of three hundred dollars and imprisonment in the coAinty jail for one hundred and eighty days. A constitutional question Ayas in the record, and an appeal Avas taken to this court. The judgment Avas affirmed as to the first count, and reversed as to the second. Oiir mandate Avas duly certified to the Clerk of the Circuit Court of Chariton County. The case is reported in the 278 S. W. 661. Thereafter and during the November term, 1926, the respondent, Hon. John E. Montgomery, made, and J. L. Kendrick, clerk of said court, entered an order of record granting to defendant Horton a stay of execution on the fine, and a parole on the jail sentence. The relator’s contention is stated as follows: “It is the contention of the Attorney-General that the Circuit Court of Chariton County, Missouri, had no further jurisdiction in the case of State at. Tom Horton after the alloAvanee of defendant’s appeal to the Supreme Court of Missouri, and that said court had no poAver even after affirmance of said judgment and the receipt of the mandate of said Supreme Court to make any orders, judgments or decrees except such as may haA'e been embraced in the judgment and mandate of the Supreme Court.” By the statute the trial court is denied the right to grant a parole pending an appeal. [Sec. 4167, R. S. 1919.] *814 Did the trial court have the authority to parole the defendant on receipt of our mandate affirming its judgment? This is the only question for solution. • In Ex parte Foister, 203 Mo. 687, we held the trial court was without authority to parole a defendant convicted of a felony after the judgment had been affirmed by this court. This ruling rests on Sections 4095 and 4096, Devised Statutes 1919, expressly directing this court to have its marshal execute all sentences pronounced in felony cases. No such direction is given in a misdemeanor case. The judgment in a misdemeanor case on affirmance is executed by the circuit court. However, it is argued by relator that a judgment affirmed in this court in a misdemeanor case becomes a judgment of this court, and the circuit court is the agent of this court in executing the sentence pronounced. [Sec. 4109, R. S. 1919.] It is further argued that being an agent of this court, it is without power to grant a parole and must execute the sentence according to the punishment assessed on the trial. The granting of a parole by the circuit courts and judges in this State is in no sense of the trial of the cause. The trial is for the determination of the guilt or innocence of the defendant. After a defendant is convicted of a misdemeanor the trial court may parole him. In State ex rel. Browning v. Kelly, 309 Mo. l. c. 472, 274 S. W. 731, we held that the granting of a parole, whether it be deemed a conditional suspension of the sentence or a conditional parole, is no part of the trial of the cause which culminates in a judgment of conviction, or in any sense an incident thereto. Relator concedes the validity of our parole law. In this he is sustained by the great weight of authority. [20 R. C. L. 577, 578; In re Patterson, 94 Kan. 439, 146 Pac. 1009; People v. Roth, 240 Ill. 532, 94 N. E. 953; State v. Goddard, 69 Ore. 73, 133 Pac. 904, Ann. Cas. 1111.] The power to parole is lodged with the trial courts, and the action of any court or judge in granting or terminating a parole is' not subject to review by an appellate court. [Secs. 4155, 4156, 4157 and 4167, R. S. 1919.] The parole law of this State is a part of our penal code, and as such becomes a part of the judgment in every criminal case as much as though it were written into the judgment of the court. [Ex parte Parker, 106 Mo. l. c. 556, 17 S. W. 658; State v. Page, 57 Pac. l. c. 516; Miller v. State, 40 L. R. A. l. c. 112; 20 R. C. L. 579.] When this court reviewed the judgment of the .circuit court in the case of State v. Horton, the parole law of the State was a part of that judgment. We affirmed the judgment on the first count as a whole. When the trial court received our mandate with directions to execute the judgment, it clearly had the power to grant a parole to the de- *815 fendáñt, for tbe reason that the judgment at all times, whether it be considered a judgment of the circuit court or a judgment of this court, contained our parole law as a part of the judgment. Therefore, it is of no consequence whether the judgment be considered a judgment of the circuit court or a judgment .of tliis court at the time of its execution. While the parole law is a part of the judgment in some felony eases, the trial court loses the power to grant a parole in a felony ease on affirmance of the judgment, for the reason that' by Section 4095 and 4096 this court is directed to have its marshal execute the sentence' pronounced. This court having no authority to grant a parole, must execute the sentence according to the punishment assessed on the trial. ... Relator directs our attention to cases in other jurisdictions. We have considered them and find they are of no aid to us in deciding the question for solution on account of the difference in the parole laws of the different states. It follows that our writ should be quashed. It is so ordered., AIL concur.