State ex rel. Chick v. Davis

• Decision Date: 05 March 1918
• Citation: 201 S.W. 529,273 Mo. 660
• Parties: THE STATE ex rel. JOSEPH S. CHICK, Jr., v. ARCH B. DAVIS, Judge of Division Two of Criminal Court of Jackson County
• Court: Missouri Supreme Court

201 S.W. 529

273 Mo. 660

THE STATE ex rel. JOSEPH S. CHICK, Jr., v. ARCH B. DAVIS, Judge of Division Two of Criminal Court of Jackson County

Supreme Court of Missouri

March 5, 1918

Writ denied.

Henry L. Jost, Michael E. Casey, Henry S. Conrad, R. R. Brewster Frank P. Walsh and James P. Aylward for relator.

(1) The respondent herein was without jurisdiction to convene or preside over said court or to take any action or make any order affecting the substantial rights of relator upon said indictment (except to abate the same), founded upon proceedings had and made of record during the November term of said court as of and for the September term thereof because said September term had expired by operation of law and said November term had lapsed by reason of the failure of the court to convene in the city of Independence on the 5th day of November, 1917, as provided by law, and any action taken or order made or threatened to be made was and is null and void and in excess of his jurisdiction, under the law. Sec. 4214, R. S. 1909; State v. Jeffors, 64 Mo. 382; State v. Eaton, 191 Mo. 156; State ex rel. v Woodson, 161 Mo. 454; Rhodes v. Bell, 230 Mo 149; State ex rel. v. County Court, 50 Mo. 321; State ex rel. v. Ross, 118 Mo. 46; Davidson v. Real Estate & Inv. Co., 226 Mo. 31; Mers v. Bell, 45 Mo. 335; Stovall v. Emerson, 20 Mo.App. 322; State v. Hixon, 41 Mo. 210; Holliday v. Cooper, 3 Mo. 204; Holman v. Hogg, 83 Mo.App. 374; State v. Eubanks, 166 Mo.App. 683; Cook v. Penrod, 111 Mo.App. 137; Bronson v. Schulton, 104 U.S. 415; Loewe v. Bank, 222 F. 342; 8 Am. & Eng. Ency. Law (2 Ed.), p. 34; 1 Ency. Pl. & Pr., pp. 240-241; People v. Bradwell, 2 Cow. (N.Y.) 445; Northrup v. People, 37 N.Y. 203; Brumley v. State, 20 Ark. 78; Ex parte Osborn, 24 Ark. 479; State v. Roberts, 8 Nev. 239; Ex parte Jones, 27 Ark. 349; People v. Sullivan, 115 N.Y. 185; Ex parte Branch, 63 Ala. 383; Cullum v. Casey, 1 Ala. 351; Wightman v. Karsner, 20 Ala. 446; Garlick v. Dunn, 42 Ala. 404; Bush v. Day, 1 Kan. 86; Downey v. Smith, 13 Ill. 671; Taylor v. Ervin, 119 N. Car. 274. (2) The September term for which the grand jury was drawn and selected having expired on the third day of November, said grand jury was wholly without any power to consider the subject-matter of or to return an indictment against the relator at the succeeding November term. State v. Jeffors, 64 Mo. 381; State v. Ulrich, 110 Mo. 350; State v. Buente, 256 Mo. 227; 1 Laws 1803-24, p. 436; 22 Cyc. 190; State v. Smiley, 98 Mo. 605; Ex parte Slater, 72 Mo. 102; In re McDonald, 19 Mo.App. 370; State v. Billings, 140 Mo. 193; 24 Cyc. 263; 12 Ency. Pl. & Pr., p. 658; State v. Brown, 127 N.C. 562; Schearer & Brooks v. Clay, 1 Litt. (11 Ky.) 261; Bray v. Wallin, 1 Overton (Tenn.), 241; Commonwealth v. Thompson, 1 Va. 319; Lore v. State, 4 Ala. 173; Ned, a Slave, v. State, 7 Port. (Ala.) 187, 213; Terrill v. Superior Court, 60 P. 38, 516; Lawson v. Pulaski, 3 Ark. 1; Johnson v. Cement Co., 60 Cal. 648, Am. Ann. Cas. 1912-B, pp. 180-181; Skinner v. State, 142 Ala. 46; State v. Bowman, 73 Iowa 110; Walker v. State, 142 Ala. 32; State v. Weinbrenner, 67 Iowa 230; Com. v. Colton, 11 Gray (Mass.), 1; Brumley v. State, 20 Ark. 77; Com. v. Rice, 15 Pa. Dist. 60; In re Terrill, 52 Kas. 29; Com. v. Wilhelm, 16 Pa. Dist. 386; In re McClasky, 52 Kas. 34; Collins v. State, 5 Okla. Crim. 254; Lopez v. State, 12 Tex.App. 27; White v. Riggs, 27 Me. 114; 12 R. C. L. 1015, sec. 3; Finnegan v. State, 57 Ga. 427; Davis v. State, 45 Ala. 80; 14 Ruling Case Law, sec. 5, p. 156; State ex rel. v. Tincher, 258 Mo. 21; Richardson v. Shaw, 6 Ont. 296; London v. Cox, L. R. 2 H. L. 239. (3) The adjournment by the Honorable Ralph S. Latshaw on the 3d day of November, the last day of the regular September term, to the 5th day of November, the day on which the regular November term of said court commenced, under the law, concluded all further action by said court or the officers thereof, assuming to act thereafter as of, for and during said September term of said court, and such attempted judicial acts on the part of Judge Latshaw, and the other officers, as a court, were clearly void. State ex rel. v. Todd, 72 Mo. 288; Ashby v. Glasgow, 7 Mo. 320; Hill v. St. Louis, 20 Mo. 587; Harbor v. Railroad, 32 Mo. 426; Carter v. Carter, 237 Mo. 633; Sec. 4212, R. S. 1909; Cook v. Penrod, 111 Mo.App. 136; State ex rel. v. Nixon, 41 Mo. 212; Grant City v. Simmons, 167 Mo.App. 186.

Hunt C. Moore, I. B. Kimbrell, Shannon C. Douglass, Jr., Virgil Yates and Martin J. O'Donnell for respondent.

(1) The statutes providing for the holding of criminal courts in Jackson County expressly prohibit both divisions from being in session at the same time at Independence and contemplate that Division Two may hold the term at Independence at the same time that Division One is holding the Kansas City term, and hence the statutory provision authorizing the holding of a November term, to commence on November 5th at Independence, did not terminate the September term at Kansas City. Sec. 4214, to 4231, R. S. 1909; Lewis' Sutherland on Stat. Const., secs. 367-490. (2) That the Legislature intended that a separate and distinct criminal court at Kansas City for the trial of offenses of the grade described in the indictment assailed by relator should always be in existence and capable of exercising its jurisdiction is shown by the various laws (beginning March 23, 1863) enacted with reference to the criminal courts at Kansas City and in Jackson County. Laws 1863, pp. 159-160; Laws 1863, p. 161; Laws 1871, p. 159; Laws 1872, p. 282; Laws 1887, p. 159; Laws 1901, p. 127; State ex rel. v. Fort, 210 Mo. 512; State v. Searcy, 46 Mo.App. 423; Barrego v. Territory, 8 N. M. 467; Kohlsaat v. Murphy, 96 U.S. 153; In the Matter of Bomino's Estate, 83 Mo. 441. (3) Neither a constitutional provision, requiring the circuit court to hold its terms, at such times and places as may be directed by law in each circuit, nor a statutory provision, requiring such court to hold terms in one place in the circuit on certain days and in another place in the circuit on certain other days, operate to terminate a term being held in one place by the arrival of the time fixed by such statute for holding a term at such other place; hence, since section 4214, R. S. 1909, provides for the holding of terms of the criminal court at Independence on certain days and at Kansas City on certain other days in the same way that the terms are provided for in the different counties of a circuit having more than one county, the statute providing for the beginning of a November term on November 5th at Independence did not terminate the September term being held at Kansas City. State v. Jeffors, 64 Mo. 382; State v. Samuels, 3 Mo. 42; Lewin v. Little, 17 Mo. 64; State v. Pope, 110 Mo.App. 520; Bank v. Parsons, 45 W.Va. 688; Stirling v. Wagner, 4 Wyo. 25; Barrego v. Territory, 8 N. M. 467; Gonzales v. Cunningham, 164 U.S. 612; Territory v. Barela, 110 P. 845; Territory v. Armigo, 14 N. M. 205; Burnett v. Prince, 197 S.W. 241; State v. Eubank, 166 Mo.App. 683-4-5; State ex rel. v. Eggers, 152 Mo. 485; Haebel v. Wabash, 119 Mo. 137; Vouillaire v. Vouillaire, 45 Mo. 602; Fenn v. River, 135 Mo.App. 229; State ex rel. v. Fort, 210 Mo. 520. (4) There is no statutory or constitutional provision expressly limiting the terms of the criminal court at Kansas City, nor making its proceeding void because of the arrival of the date fixed by law for the November term at Independence, and hence even had the September grand jury, without having been resworn, returned the indictment after the beginning of the January, 1918, term at Kansas City, the indictment, having been returned by a de facto grand jury, would have been valid. Sec. 3876, R. S. 1909; Sec. 18, Laws 1803-24, vol. 1, pp. 112-113; Laws 1825, sec. 276; Harkness v. Jarvis, 182 Mo. 241; 12 R. C. L. 1015; State v. Noyes, 87 Wis. 340; People v. Morgan, 133 Mich. 550; People v. McCauley, 256 Ill. 504; State v. District Court, 31 Mont. 428; State v. Miller, 111 Mo. 549; State v. Carroll, 38 Conn. 449; State v. Douglas, 50 Mo. 593; State ex rel. v. Seay, 64 Mo. 89, 27 Am. Rep. 206; 20 Cyc. 1333; In re Gannon, 69 Cal. 541; Laws 1913, p. 217; United States v. Rockefeller, 221 F. 462. (5) No constitutional right of relator has been violated, and the alleged rights, which relator claims have been violated by respondent, are not protected by the provisions of the Federal Constitution invoked by relator. State v. Webb, 254 Mo. 432-433; Twining v. New Jersey, 211 U.S. 78; Weeks v. United States, 232 U.S. 383; Hurtado v. California, 110 U.S. 516; Hodgson v. Vermont, 168 U.S. 262; Bollman v. Nebraska, 176 U.S. 83; Maxwell v. Dow, 176 U.S. 581; Kalloch v. Superior Ct., 56 Cal. 229; State v. Boswell, 104 Ind. 541; Hansenfleck v. Com., 85 Va. 702; Ensign v. Commonwealth, 33 S.Ct. R. 321.

OPINION

In Banc.

Prohibition.

BLAIR J.

Prohibition. The statute (Sec. 4214, R. S. 1909) provides for five terms of the criminal court of Jackson County annually, "three of which shall be held in the City of Kansas . . . and two at the City of Independence." On November 3, 1917, the September term at Kansas City was adjourned to Monday, November 5, 1917, and continued thenceforward from day to day. November 5, 1917, was the day the statute fixed as the day for beginning the November term at Independence. Relator's contention is that the arrival of the statutory time for beginning a term at Independence necessarily and, so to speak, automatically ended the September term at Kansas City and that proceedings thereafter at Kansas City as of such September term were "coram non judice and void."

Courts can exercise judicial functions only when lawfully in session. [State ex rel. v. Ross, 118 Mo. 23, 23 S.W....