
    LEWIS C. MARTIN vs. THE STATE OF MISSOURI.
    A circuit court, or judge thereof in vacation, has authority to issue a writ ol “ habeus corpus, ’* for a person confined upon an indictment found in another court of competent jurisdiction ; and if such court or judge should order such person to be discharged, the jailor having custody of him, is justified in obeying the order, however erroneous and illegal it may be.
    APPEAL FROM ST. LOUIS CRIMINAL COURT.
    Field & Hall, for appellant.
    Tho first point in this case that the appellant was guilty of no contempt of the criminal court, by wilful disobedience of any process or order lawfully issued, by said court. Revised Statutes page 338 Sec. 61.
    2d. The circuit court had jurisdiction of the case as presented by the return of the appellant, and therefore had full power and authority to discharge said Jackson from the Custody of said appellant. 1st and 2d sections of habeas corpus act, page 555, 556.
    3d. The writ of habeas corpus issued by a court or judge, having by law the authority to isBue the same, cannot be disobeyed. 12th section 1 art. habeas Corpus act, p. 557, page 569, sec. 12.
    4th. 3Mo order, process, or writ, from the criminal court, would be any justification on the part of the jailor, in refusing to obey said writ. 10th section of the habeas corpus act, pago 560.
    5th. Jackson, after being brought before the circuit court, upon said writ of habeas corpus, and the cause of his imprisonment returned by tho appellant, was in custody and under the control of the court, and not the appellant, and the order discharging him could not be disobeyed. Page 552 sec. 5 habeas corpus act.
    6th. The officer obeying an order discharging a prisoner from his custody is not liable, either jn a civil action or for contempt of court. Page 566 of revised laws sec 24.
    Lackland, circuit attorney, for appellee.
    The principle seems to have been settled by this court, in Iho case of George vs. Murphy, I Mo. Rep. 558, in thiswise: a judgment of partition was rendered by the circuit court under our statute concerning partition* Commissioners were appointed, who made partition, and made report to the court of their proceedings. The circuit court set aside the report, an'cl proceeded to make partition without the intervention of commissioners. This court decided that the partition made by the circuit ccu-tt was a nullity, because the statute gave no such power to the court; Much more must the iict of judge Hamilton be la nullity, when the section of habeas corpus act above referred to, expressly forbids such discharge, and virtually says that as to a party imprisoned on an indictment or process, to enforce the samé it shall be as though there was no habeas corpus act a't all.
    In ¿dlother counties 'in *fchis Sthte except this, the sheriff is jailor. By a special act, the jailor of this cóunly is made an independent officer. In respect to the duties of his office, he may bé •considered as “a sheriff, because &s t'o the duties of his office, he stands in the same relationship to the court as the sheriff of other counties.
    The sheriff or other officer executing the orders of the court, is bound to know whether the court has jurisdiction oí the matter, or whether the acts of the court are utterly void for want of jurisdiction, because upon this turns the question whether the officer, in executing these orders, is a legal ágenVof the co’tirt, or a mere trespasser. In support of this point—vide Sewell oh sheriff 44 Vol. law library p. 92; 8 T. R. p. 432; Watson on sheriff p. 29; 5 Coke Rep. p. 76.
    If 'the order of judge Hamilton were a nullity, then the jailor was without authority, and á wrong dbne in executing it, and he haVing executed it in disregard of a legal order made by the Criminal court, a court having jurisdiction of the matter, was guilty of á contempt, and the criminal couit had a right 'to sae Martin for such contempt. Sec. 61 & 62 act to establish courts of record and prescribe their duties.
    Supposing the indictment had lost its vitality by lapse of terms, even then we contend the cir cuit court nor the judge thereof, had no authority to discharge, for want of jurisdiction
    1st. B’ecaúse the habeas corpus act merely gtv’es the court or judge the power to inquire intd the cause of detention and imprisonment when the charge for which he stands committed has not ripened into an indictment, and throughout its wliole spirit conveys the idea that after an indictment bé fdund habeas corpus cannot aid the party; because by that Tvrit neither the vitality nor validity o'f án indictment can be inquired into. And if his honor judge Hamilton, or the circuit court-, cóüld go behirid so grave a matter, and inquire into its vitality as above specified, he could also in'qufré into 5‘ts validity, and say whether a motion to quash, or a démurrer would lay and sustain, or overrulé them as he might think the casé required, which we liold to be the exclusive province of the criminal court; and if judge Hamilton or the circuit court coüld do this, so could .judge Blair, and the court of common pleas, and also the county court, and the seven justices which compose the same, and the result of this construction of the act would be, that we would have as many Criminal courts in this county as we have officers and courts in this county authorized to determine mattérs bn habeas corpus.
    2d. The circuit court had no jurisdiction to discharge Jackson under the law, because it would in effect be admitting that the circuit court h&d jurisdiction of a criminal cause, and could render ■a judgment therein. It "cann'ot be supposed that judgé Hamilton, or the circuit court, brought ■Jackson out on habeas-corpus to discharge him on bail, because he was discharged without bail; sand we are forced ‘to the Conclusion that lie was brought out for that purpose (i e) to be dis’charged without bail, for which he had no jurisdiction or power to issue the writ of habeas corpus. The •circuit court rendered its judgment dischárging Jackson under certain supposed rights, that by virtue of the 25th sec. 6th art. of Prac. ánd Pro.; in criminal cases were extended to Jackson. This judgment of discharge is an absolute hullity,because the circuit Court had no jurisdiction. 1st, For the reason, that if Jackson had rights by virtue of the secU’on of the act above mentioned, these rights could in no wise be enforced by habeas corpus, but must be by motion to discharge in the criminal court where the indictment is péhding, which cbnstruction is abundantly strengthened by the 26, 27, and 28 sect, oí same acts which are in relation to matters in the same co'nnectiori, which can only b'e performed by the criminal court. The right to be discharged 'under said 25th see. often depending upon matters which must be judicially known, and can only 'be judicially known to the'coiirt having criminal jurisdiction, and in which the ca'use is pending, 'and must be obtained 'through the instrumentality of the criminal court: and secondly, for the reason that a discharge under said 25th sec. is not merely a restoration of personal liberty—or the ■rights of locomotion, which is the only use and object of the habeas corpus act, but it is a discharge “ so far as relates to the offence for which he was committed ”—a discharge of the offence. It seems plain that when a party is discharged properly under the provisions of the 25th sec. above referred to, that the offence for which he stands charged by operation of law, becomes res adjudícala, and that discharge could be plead in bar of a’ny indictment subsequently found for the same 'offence. The circuit court undertakes to determine his right to a discharge, and to render a judgment of discharge in the matter—to make the matter res udjudicata, to render judgment in a 'criminal cause then pending in another court, to wit, the criminal court; and that court having “all 'the original and appellate jurisdiction in criminal cases vested in the several circuit courts of the State.” Sec. 1, act to establish criminal courts. So far then as original and appellate jurisdiction 'In criminal cases is concerned, the criminal court is the circuit court in this county, and the circuit court as to these matters, is no court at all. The 5th sec. of the act last mentioned says: ‘‘ The Circuit court of St. Louis county shall exercise its superintending control over the said crimina^ court only by appeal or writ of error allowed and prosecuted in the manner and with the effect prescribed by law in eases of appeals or writs of error to the supreme court,’’ &c. These, then, are the only means known to the law, by which the St. Louis circuit court can have any thing to do with a criminal cause. The cause of Jackson was not brougnt before thegcircuit court in any of the ways authorized By the law, and in fact it attempts to try a criminal cause by habeas corpus and render a judgment therein, which we think may be regarded as anSanomaly in the law. Is it not clear thai such a judgment is a perfect nullity, and the process issued thereon no shield to the 'officer executing the same.
    It is contended by the circuit coürt that the indictment ceased to exist^by virtue of thé lause oí the second term after indictment, that it was lioid, and not voidable, and by operation of law as to Jackson, it was as though there was no indictment pending against] hi m,gund consequently inai. there was no cause for the detention of Jackson. In answer we say, first: That the ciicuit court had no power to 'inquire into the vitality or validity of the indictment, by habeas coipuB, but as soon as it appeared to the court that there was an indictment against Jackson, he should 'have been remanded or admitted to bail—any other act disposing of or affecting the 'matter is utterly void, no-only because it is simply without authority of law, but right in the face of statutoiy enactment.
    Secondly. The end’of the second term after indictment found had not come when Jackson was discharged, allowing that the lapse of terms made the indictment a nullity, because the enu o November term 1848 of the criminal court had not then come, which was thejdrsf, and not the second term after indictment found.
    Thirdly. Admitting that the end of a dozen terms after indictment found had come, this docs not make the indictment void, and cause itslegal death, but by the lapsing of these terms, certain rights accrue to defendant under the said 25 th sect., which he may avail himself of, or not, agreeably to his pleasure, and which do not go to the vitality of the indictment at all, but are like any other matters of limitation; for if any number of terms, after indictment found had elapsed, and the defendant failed to apply for his rights under the 25th sec., and a conviction had on such an indictment, that conviction, it is contended, would be as valid as any ever obtained in any court. But the 25th sec. says “ he shall he entitled to he discharged, ’’ evidently leaving it optienary with the party to make his motion in the criminal court, and go out of court in that way, or to stand a trial and be honorably acquitted by a jury of his country, often a matter of the most importance, and often dearest interest to the party ; but1 according to the construction given by tbe circuit court; lie would be bound to be released by force of the limitation only, without any power on his part to spurn such relief, and to avail himself of the right to clear up a charge made against him of however grave a nature, and unfounded it may be.
    The criminal court ordered Martin to íetain Jackson to answer to an indictment then pending against him in that court, which order was made tome lime after Jackson had been committed by the criminal court, and Martin was at the same time admonished not to discharge Jackson on the order or process of any other court, because no other court could make such order, for want of jurisdiction.
    The order made by the criminal court requiring Páartin to keep Jackson; and him safely, keep to answer unto the indictment then pending in said court against him, was a lawful order, and which order Martin knowingly, and consequently wilfully disobeyed, and "which agreeably to the 61st and 62d secs, of the act to establish courts, above referred to, is a contempt, and the criminal court had the right to fine him for the same.
   Judge Ryland

delivered the opinion of the court.

From the facts, as stated in this case, and as they appear from the record, the main question for the court to decide is, had the circuit court of St. Louis county, or the judge thereof, in vacation, the power and authority to issue a writ of habeas corpus on the petition of tbe prisoner John Jackson ? If this question be answered in the affirmative, then no matter how indiscretely or how erroneously the said circuit court, or judge thereof, may have acted in discharging the prisoner Jackson, nevertheless such discharge will be a full and complete justification to the ministerial officer or jailor in obeying it.

Our statute upon the subject of habeas corpus, secs. 1 and 2 article 1st declares, that “ every person committed, detained, confined, or restrained of his liberty, within this State for any criminal matter or under any pretence whatsoever, except, when according to the provision? of this act, such person can neither be discharged or bailed, or otherwise relieved, may prosecute a writ of habeas corpus as hereinafter provided, to inquire into the cause of such confinement or restraint.

Sec. 2. Application for such suit shall be made by petition, signed by tbe party for whose relief it is intended, or by some person in his behalf, to some court of record in term, or to the (a) judge of the supreme court, or circuit court, or any justice of the county court. ” By this statute, power to grant or issue writs of habeas corpus is expressly given to the circuit court or to a judge thereof. This power is given with this restriction—see the exception in the first section of the act above recited—“except when according to the provisions of this act, such person can neither be discharged or bailed or otherwise relieved.” The prisoner John Jackson was indicted in the Saint Louis criminal court, for an offence which by our law is bailable, and was in confine.ment under process upon said indictment. Could the circuit court of St. Louis county, or the judge thereof, in vacation admit the prisoner to bail? See Revised Statutes 1844-5, practice and proceedings in criminal case art. IY secs. 19, 20, 21.

Sec. 19. Where the indictment is for a bailable offence, the defendant -may be let to bail by the court in which such indictment is pending, or if such court be not setting, by the judge thereof, 'or by any judge or justice of the county court of the county in which such indictment is pending.

Sec. 20. When the indictment is for a misdemeanor the sheriff may himself admit to bail, the defendant with sufficient security, in a sum proportioned to the offence, and which in no case shall be less than one hundred dollars, and the recognizance shall be signed by the prisoner and his securities, and attested by the sheriff.

Sec. 21. No court or officer, other than those specified in the two last sections, shall let to bail any person indicted for an offence.”

Do the words any judge or justice of the county court ” in the 19th section mean the same officer? Without giving any opinion as to the power of the St. Louis circuit court or the judge thereof in vacation to let to bail a prisoner confined upon indictment, found by another court of competent authority ; the prisoner Jackson may have been entitled to some other relief. At any rate the St., Louis circuit court and the judge thereof in vacation had the power to grant and issue the writ. This gives to. such court or judge jurisdiction over the subject matter-; and though the statute expressly declares- that no person imprisoned on an indictment found in any court of competent jurisdiction, or by virtue of any process or any commitment to enforce such indict-men can be discharged under the provisions of this act; but may be let to bail if the offence be bailable, and if the offence be not bailable, he shall be remanded forthwith.” See habeas corpus act art. Ill sect. 12. Yet this section does not take away the jurisdiction, but orders and directs what shall be done. A circuit judge, therefore, discharging against this provision of the statute, may be considered as acting indiscretely, even erroneously; yet having jurisdiction over the subject, his order discharging, must be considered a justification to the jailor in turning out the prisoner, thus ordered to be discharged. The rule is, if the court have jurisdiction over the subject matter, the sheriff must obey the writ. See 1st vol. Missouri Rep. 418, Berry and Smith vs. Burckhart; Sewell’s law of sheriff, Law Library vol. 44 p. 92.

When the court hath jurisdiction of the cause, and shall proceed “ ¿re verso ordine ” or erroneously, there the officer or minister of the,court, which shall execute the precept or process of the court, is excucusable so as no action will be against him; but when the court hath no jurisdiction of the cause, then all the proceeding is “ coram non judice,” and therefore an action will lie against the officer without any regard had of the precept or process of the court.

The distinction taken between the erroneous judgment of a court having jurisdiction and the want of jurisdiction, is thus illustrated by Dalton: “If the justices, of the peace arraign a person of treason in the session who is convicted and executed ; this is felony as well in the justices as in the sheriff or officer who executed the sentence, but if he had been indicted of a trespass, found guilty and hanged, though this had been felony in the justices, yet it would not be so in the sheriff, because, a matter in which they, the justices, had jurisdiction, and in which they only were to blame in exceeding their authority.”

The circuit judge here having authority to issue the writ of habeas corpus, (and this point the. attorney for the State in his brief admits, but contends that all the subsequent acts of the judge are not only against but are beyond his jurisdiction, and are utterly void,) his act afterwards in discharging the prisoner John Jackson, although it may have been erroneous and contrary to law, yet it could not be said to be an act “ coram non judice.” There is. a broad and obvious distinction between the illegal judgment of a court having jurisdiction and the act of a court without jurisdiction—and the authority from Dalton I consider sufficiently discriminating.

The defendant Martin must be considered as justified in obeying the order of the circuit judge; and. from the answer of the said Martin to the rule of the criminal court against him, it appears that he only acted in obedience to the order of the circuit judge, without any intent or design to disobey the order of the criminal court.

I feel bound to state, that in my opinion, the defendant Martin purges, all contempt, aud that he should have been discharged without fine. In the matter of the fine then my opinion is, the criminal court erred, and such being the opinion of my brother judges, its judgment is reversed'..  