ATWOOD, J.
This is an original proceeding1 by the Habeas Corpus Act to procure the discharge of Alvin Bass, who is alleged to be
unlawfully restrained by Leslie Rudolph, Warden of the Missouri State Penitentiary. Our writ was issued on petitioner’s duly verified application, production of the body was waived, and verified return to said writ was filed by said warden stating that he held the body of said Alvin Bass “by virtue and under the authority of a commitment issued by the Juvenile Court of Greene County, Missouri, during the January Term, 1931, and dated the 28th day of January, 1931; a certified copy of which commitment is attached hereto and made a part of this return.” The petitioner did not plead to this return, whereupon the warden filed motion for judgment on the pleadings.
In Ex parte Flournoy, 310 Mo. 355, 357, 275 S. W. 923, we said:
“The return and not the petition is the principal pleading. [Ex parte Thornberry, 300 Mo. l. c. 674.] The latter has performed its function when the writ is issued. It is to the return, therefore, that a traverse or denial must be made to the material facts set forth in the return, and upon its being filed the case is at issue. Without the filing of these pleadings no issue is presented, and only a dismissal is authorized, unless, as at bar, a failure to comply with the required procedure is ignored and the case is heard on the allegations of the petition alone.”
A\Te have also many times held that if the averments of the return are not denied or contradicted by some appropriate pleading, the facts set out in the return are to be taken as the ultimate facts in the case, regardless of the allegations pleaded in the petition. [State ex rel. v. Skinker (Mo. Sup.), 25 S. W. (2d) 472, 476; Schein v. Gallivan, 321 Mo. 268, 10 S. W. (2d) 521; Ex parte Knight, 308 Mo. 538, 540, 272 S. W. 922; Ex parte Thornberry, 300 Mo. 661, 666, 254 S. W. 1087, 1088; In re Tartar, 278 Mo. 356, 365, 213 S. W. 94; In re Breck, 252 Mo. 302, 319, 158 S. W. 843; Ex parte Durbin, 102 Mo. 100, 104, 14 S. W. 821; Ex parte Bryan, 76 Mo. 253.]
Looking then to the return for the ultimate facts in this ease we find them in the certified copy of the commitment thereto attached and made a part thereof, which is in fact a certified copy of the judgment and sentence of the Juvenile Court of Greene County, Missouri, rendered Saturday, January 24, 1931, in the case wherein the State of Missouri was plaintiff and Alvin Bass was defendant, ae follows:
“Now on this day comes on for hearing the above entitled cause, on information duly filed, in said court, charging, under oath, that the said defendant, on the 30th day of December, 1930, in the County of Greene, State of Missouri, violated the criminal laws of said State, in that he did then and there commit the crime of robbery in the first degree by means of a dangerous and deadly weapon, the said defendant appearing in open court in his own proper per
son, and his counsel appearing in his behalf, and the parents of said defendant, and the prosecuting attorney of said county, also being' present, and said defendant having talked to and consulted with a friend and with his said attorney, and the judge of said juvenile court having duly advised himself as to the previous record of said defendant, and having determined and directed that further steps, and the trial of said defendant, herein, shall proceed against said defendant, not as a delinquent, but under the general criminal law,' and said information having been read to said defendant, and said defendant being now duly arraigned upon said information charging him with the commission of the crime hereinabove specifically stated, for his plea thereto says that he cannot deny but that he is guilty in manner and form as he stands charged in the said information and of this plea puts himself upon the mercy of the court. Whereupon the said court, having heard the plea of guilty aforesaid doth find that said defendant is over the age of sixteen years, but under the age of seventeen years; and also that the defendant is guilty as charged in the said information, and doth fix and assess the punishment of said defendant for said crime at imprisonment in the State Penitentiary, at Jefferson City, Missouri, for the period of twenty-five years from the 24th day of January 1931. And it is now by the court ordered that said defendant stand committed unto the charge and custody of the probation officer of this county to await the judgment and sentence of said juvenile court herein.
“And thereafter, on said day and date, come said defendent, his said attorney, his parents, and the prosecuting attorney of said county, each in his and her own proper person, here in open court, whereupon said defendant is informed by the court that he is adjudged guilty as charged in said information on his confession to the crime of robbery in the first degree by means of a dangerous and deadly weapon. And, being now asked by said court if he has any legal cause to show why judgment shall not be pronounced against him according to the general law governing crimes, and no sufficient cause being shown against it, it is therefore considered, adjudged, sentenced and ordered by said juvenile court, that said defendant, Alvin Bass, having pleaded guilty as aforesaid, be, and he hereby is by said court sentenced to be, imprisoned in the State Penitentiary at Jefferson City, Missouri, for the period of twenty-five years from the 24th day of January, 1931, there to be confined, kept and treated in the manner prescribed by law, until the sentence and judgment of the court herein be complied with, or until said defendant shall be otherwise discharged by due course of law. And it is further adjudged and ordered by said court that the said State have and recover of and from said defendant the costs of this prosecution and that execution issue therefor; also that the clerk of
said court shall forthwith make out and deliver to the probation officer of this county a certified copy of this judgment of conviction and sentence, duly certified by such clerk; and that said probation officer in person or by a general and usual deputy shall without delay cause said defendant to be transported to said penitentiary and delivered to the keeper thereof.”
The grounds of the illegality of the prisoner’s detention stated in his application upon-which oiu* vrit issued, and which are now urged in his behalf, are as follow»:
1 ‘ 1. That the court in entering the dismissal of the proceedings in said cause under the juvenile procedure divested the court of all jurisdiction to further hear and determine the same, and all proceedings had thereafter under the said information signed by J. Will Webb, the Chief Probation Officer, was illegal and void for want of jurisdiction, and for the further reason that the court had directed that all proceedings following the said dismissal should be under the principles of procedure of the general criminal laws of the State and was void.
“2.
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ATWOOD, J.
This is an original proceeding1 by the Habeas Corpus Act to procure the discharge of Alvin Bass, who is alleged to be
unlawfully restrained by Leslie Rudolph, Warden of the Missouri State Penitentiary. Our writ was issued on petitioner’s duly verified application, production of the body was waived, and verified return to said writ was filed by said warden stating that he held the body of said Alvin Bass “by virtue and under the authority of a commitment issued by the Juvenile Court of Greene County, Missouri, during the January Term, 1931, and dated the 28th day of January, 1931; a certified copy of which commitment is attached hereto and made a part of this return.” The petitioner did not plead to this return, whereupon the warden filed motion for judgment on the pleadings.
In Ex parte Flournoy, 310 Mo. 355, 357, 275 S. W. 923, we said:
“The return and not the petition is the principal pleading. [Ex parte Thornberry, 300 Mo. l. c. 674.] The latter has performed its function when the writ is issued. It is to the return, therefore, that a traverse or denial must be made to the material facts set forth in the return, and upon its being filed the case is at issue. Without the filing of these pleadings no issue is presented, and only a dismissal is authorized, unless, as at bar, a failure to comply with the required procedure is ignored and the case is heard on the allegations of the petition alone.”
A\Te have also many times held that if the averments of the return are not denied or contradicted by some appropriate pleading, the facts set out in the return are to be taken as the ultimate facts in the case, regardless of the allegations pleaded in the petition. [State ex rel. v. Skinker (Mo. Sup.), 25 S. W. (2d) 472, 476; Schein v. Gallivan, 321 Mo. 268, 10 S. W. (2d) 521; Ex parte Knight, 308 Mo. 538, 540, 272 S. W. 922; Ex parte Thornberry, 300 Mo. 661, 666, 254 S. W. 1087, 1088; In re Tartar, 278 Mo. 356, 365, 213 S. W. 94; In re Breck, 252 Mo. 302, 319, 158 S. W. 843; Ex parte Durbin, 102 Mo. 100, 104, 14 S. W. 821; Ex parte Bryan, 76 Mo. 253.]
Looking then to the return for the ultimate facts in this ease we find them in the certified copy of the commitment thereto attached and made a part thereof, which is in fact a certified copy of the judgment and sentence of the Juvenile Court of Greene County, Missouri, rendered Saturday, January 24, 1931, in the case wherein the State of Missouri was plaintiff and Alvin Bass was defendant, ae follows:
“Now on this day comes on for hearing the above entitled cause, on information duly filed, in said court, charging, under oath, that the said defendant, on the 30th day of December, 1930, in the County of Greene, State of Missouri, violated the criminal laws of said State, in that he did then and there commit the crime of robbery in the first degree by means of a dangerous and deadly weapon, the said defendant appearing in open court in his own proper per
son, and his counsel appearing in his behalf, and the parents of said defendant, and the prosecuting attorney of said county, also being' present, and said defendant having talked to and consulted with a friend and with his said attorney, and the judge of said juvenile court having duly advised himself as to the previous record of said defendant, and having determined and directed that further steps, and the trial of said defendant, herein, shall proceed against said defendant, not as a delinquent, but under the general criminal law,' and said information having been read to said defendant, and said defendant being now duly arraigned upon said information charging him with the commission of the crime hereinabove specifically stated, for his plea thereto says that he cannot deny but that he is guilty in manner and form as he stands charged in the said information and of this plea puts himself upon the mercy of the court. Whereupon the said court, having heard the plea of guilty aforesaid doth find that said defendant is over the age of sixteen years, but under the age of seventeen years; and also that the defendant is guilty as charged in the said information, and doth fix and assess the punishment of said defendant for said crime at imprisonment in the State Penitentiary, at Jefferson City, Missouri, for the period of twenty-five years from the 24th day of January 1931. And it is now by the court ordered that said defendant stand committed unto the charge and custody of the probation officer of this county to await the judgment and sentence of said juvenile court herein.
“And thereafter, on said day and date, come said defendent, his said attorney, his parents, and the prosecuting attorney of said county, each in his and her own proper person, here in open court, whereupon said defendant is informed by the court that he is adjudged guilty as charged in said information on his confession to the crime of robbery in the first degree by means of a dangerous and deadly weapon. And, being now asked by said court if he has any legal cause to show why judgment shall not be pronounced against him according to the general law governing crimes, and no sufficient cause being shown against it, it is therefore considered, adjudged, sentenced and ordered by said juvenile court, that said defendant, Alvin Bass, having pleaded guilty as aforesaid, be, and he hereby is by said court sentenced to be, imprisoned in the State Penitentiary at Jefferson City, Missouri, for the period of twenty-five years from the 24th day of January, 1931, there to be confined, kept and treated in the manner prescribed by law, until the sentence and judgment of the court herein be complied with, or until said defendant shall be otherwise discharged by due course of law. And it is further adjudged and ordered by said court that the said State have and recover of and from said defendant the costs of this prosecution and that execution issue therefor; also that the clerk of
said court shall forthwith make out and deliver to the probation officer of this county a certified copy of this judgment of conviction and sentence, duly certified by such clerk; and that said probation officer in person or by a general and usual deputy shall without delay cause said defendant to be transported to said penitentiary and delivered to the keeper thereof.”
The grounds of the illegality of the prisoner’s detention stated in his application upon-which oiu* vrit issued, and which are now urged in his behalf, are as follow»:
1 ‘ 1. That the court in entering the dismissal of the proceedings in said cause under the juvenile procedure divested the court of all jurisdiction to further hear and determine the same, and all proceedings had thereafter under the said information signed by J. Will Webb, the Chief Probation Officer, was illegal and void for want of jurisdiction, and for the further reason that the court had directed that all proceedings following the said dismissal should be under the principles of procedure of the general criminal laws of the State and was void.
“2. All hearings by the court after the entry of the order and direction that the proceedings be had under the general criminal laws of the State were without jurisdiction and null and void because no indictment was ever returned under Article 2, Section 12, of the Constitution and the general criminal laws of the State of Missouri, to clothe said juvenile court with further jurisdiction as to the subject-matter and the person of the defendant and no information was filed by the prosecuting attorney of Greene County, Missouri, in compliance with Article 2, Section 12, of the Constitution and the general criminal laws of the State of Missouri, and the information signed and verified by J. Will Webb, Chief Probation Officer, filed in the juvenile court and thereafter dismissed by said court, is void for the reason that it does not comply with Article 2, .Section 12, of the Constitution and with the general criminal laws of the State of Missouri, and under the procedure of the general criminal laws of the State of Missouri, is wholly void and fails to clothe the court with jurisdiction over the subject-matter and the person of the defendant to hear and try said cause.
“3. That the sentence and commitment was in violation of Article 2, Section 30, of the Constitution of the State of Missouri, in that it took from defendant his right to liberty without due process of law.”
The warden’s return does not show that the court entered a dismissal of any proceedings in said cause under the juvenile procedure, but it does show that the court “determined and directed that further steps, and the trial of said defendant, herein, shall proceed against said defendant, not as a delinquent, but under the general criminal law.” It further appears that notwithstanding this de
termination and direction, the court, still sitting as the juvenile court or division, continued to entertain jurisdiction of the case, accepting defendant’s plea of guilty and finally sentencing and committing him to imprisonment in the state penitentiary. This procedure is not inconsistent with our ruling in State ex rel. v. Rutledge, 13 S. W. (2d) 1061, 1065, 321 Mo. 1090, that the juvenile court or division has exclusive jurisdiction in all cases in which persons under the age of seventeen years are charged either with delinquency or the commission of crime. However, under our later controlling decision in State ex rel. Wells v. Walker, 326 Mo. 1233, 34 S. W. (2d) 124, a juvenile court’s jurisdiction in such a case ceases upon its determination and direction that the defendant shall be proceeded against, not as a delinquent, but under the general criminal law. It follows that the commitment issued in this case by the Juvenile Court of Greene County, by virtue and authority of which the warden of the state penitentiary holds petitioner, is void.
However, it does not follow that petitioner is entitled to an absolute. discharge. Section 1468, Revised Statutes 1929, a provision of the Habeas Corpus Act, is as follows:
“If a prisoner be not entitled to his discharge, and be not bailed, the court, or magistrate before whom the proceedings are had shall remand him to the custody or place him under the restraint from which he was taken, if the person under whose custody or restraint he Was be entitled thereto; if not so entitled, then he shall be committed to the custody of such officer or person as by law is entitled thereto.”
The warden’s return shows that petitioner was charged with commission of the crime of robbery in the first degree by means of a dangerous and deadly weapon in Greene County, and that the. juvenile court of that county determined and directed that he be proceeded against, not. as a delinquent, but under the general criminal law.
It. is therefore ordered that petitioner be committed to the custody of the Sheriff of Greene County to be dealt with accordingly in the circuit court of that county.
Ellison, J.,
concurs in separate opinion in which
Gantt, Frank, White
and
Hrnwood,
/•/., concur;
Ragland, G. J.,
dissents in separate opinion.