Ex Parte McLaughlin

GANTT, J. —

This is an original proceeding in this court by the petitioner for discharge from a prosecution pending against him in the circuit court of the city of St. Louis for criminal causes, for robbery in the first degree.

On an information duly verified by the assistant circuit attorney of the city of St. Louis, the defendant was arrested and on a preliminary examination in the court of general sessions was bound over to await a trial in the circuit court for said offense. Afterwards, at the February term, 1908, of the circuit court, an information duly verified was filed in said court charging him with robbery in the first degree. On February 11, 1908, the defendant being in the custody of the sheriff, was duly arraigned upon the information and entered his plea of not guilty. Afterwards, without withdrawing such plea, he filed his plea in abatement, to which the State demurred and the demurrer was sustained. Defendant then filed his motion to' quash, alleging substantially the same matters set up in the plea in abatement, to-wit, that he had not been ac *661 corded a preliminary hearing prior to the filing of the information and for the reason that the information did not on its face allege he had been accorded such preliminary examination. This motion to quash was overruled. Defendant then filed a demurrer to the information, on the grounds that the information did not charge any offense and that the court had no jurisdiction to try the case. The demurrer was overruled. At this point in the cause, the petitioner began this proceeding for Habeas Corpus in this court.

The grounds upon which he seeks his discharge are briefly, first, that the proceeding by information instead of by indictment is repugnant to the Fifth Amendment to the Constitution of the United States which provides that “no person shall be held to answer for a capital or other infamous crime unless on a presentment or indictment of a grand jury.”

Second. Because the information does not on its face allege the petitioner had been awarded a preliminary examination, or as we take it, that his preliminary examination in the St. Louis court of general sessions amounted to the same thing, as that court has been adjudged an unconstitutional tribunal.

I. As to the first ground, to-wit, that a prosecution by information for a felony is repugnant to the Fifth Amendment to the Constitution of the United States, it is sufficient to say this contention has been met and set at rest by the adjudications, both of the Supreme Court of the United States and of this court. In Hurtado v. California, 110 U. S. 516 , and Hodgson v. Vermont, 168 U. S. 262 , it was expressly ruled that a State Constitution authorizing the prosecution of felonies by information, as well as by indictment, was not a denial of due process of law within the meaning of the 14th Amendment to the Federal Constitution. The Fifth Amendment has likewise been uni- • formly construed' as a limitation only upon Congress *662 ional power and not upon the power of the several States. [Barron v. Mayor, 7 Peters (U. S.) 243.]

The amendment of section 12 of article 2 of the Constitution of Missouri (1875), providing for the prosecution of felonies by indictment or information as concurrent remedies, was duly adopted by the people of this State at the general election November 8th, 1900, and is a part of the organic law of this State and in no manner infringes the Constitution of the United States. [State v. Jones, 168 Mo. 398 ; State v. Kyle, 166 Mo. 287 ; State v. Parks, 165 Mo. 496 .]

II. The complaint in the plea in abatement, motion to quash and demurrer to the information, that “the information fails to set out the fact that the defendant was accorded or given a preliminary hearing before the filing of the information by the circuit attorney,” is no bar to the prosecution of the petitioner. The writ of Habeas Corpus is not a substitute for an appeal or writ of error. [Ex parte Clay, 98 Mo. 578 ; Ex parte Mitchell, 104 Mo. 121 .]

The circuit court of the city of St. Louis is a court of general criminal jurisdiction and had full power to pass upon the sufficiency of the plea in abatement, motion to quash and demurrer in this case, and if it erred its decision can be reviewed and corrected on appeal.

The grounds Upon which petitioner seeks his discharge are not jurisdictional but go merely to the regularity of the preliminary proceedings leading to his arrest and the sufficiency of the information, all of which can be determined on appeal if defendant feels that he is aggrieved by the judgment of that court. We have no hesitancy in holding that the circuit court is a court of general jurisdiction and the filing of an information and the prosecution thereof in said court is not a special or exceptional exercise of jurisdiction, in which all the preliminary steps leading *663 up to the prosecution must be affirmatively shown upon the face of the record or information. The according or denial of the preliminary trial provided by the statute goes only to the regularity of the proceedings and not to the jurisdiction of the circuit court and the preliminary examination may be waived, not only in the justice’s court or other examining tribunal, but at the lime he is required to plead to the information, and if, as in this case, it appears he pleads the general issue of “not guilty,” he is held to waive it. His subsequent recourse to pleas in abatement, motions to quash, and demurrers, with the plea of “not guilty” •standing, will not even convict the trial court of error, which is the most that can be done, even if the court erred in requiring him to proceed without having been awarded the preliminary trial vouchsafed by the statute. [State v. Jeffries, ante, p. 302; Washburn v. People, 10 Mich. 383 ; State v. Barnett, 3 Kan. 250 .]

As the application discloses no want of jurisdiction in the circuit court to hear and determine all the •questions raised therein, and as this court under a writ of Habeas Corpus has no pow;er to investigate the. correctness of the rulings of any other court of competent jurisdiction short of that which is jurisdictional, the discharge is denied, and the prisoner is remanded to the custody of the jailor of the city of St. Louis, in •order that his trial may proceed in conformity to law in the circuit court.

Discharge denied. Fox, P. J., and Burgess, J., concur.