State ex rel. Page v. Terte
Decision Date | 26 February 1930 |
Docket Number | No. 29965.,29965. |
Citation | 25 S.W.2d 459 |
Parties | THE STATE EX REL. JAMES R. PAGE, Prosecuting Attorney of Jackson County, v. BEN TERTE, Judge of Circuit Court of Jackson County. |
Court | Missouri Supreme Court |
H.C. Waltner and Rodman L. Henry for respondent.
(1) The provisional rule should be vacated and relator's petition dismissed, for the reasons that respondent's rulings were in conformity with Sec. 1378, R.S. 1919; the court had jurisdiction over the subject-matter and of the parties and was invested by the statute with "the discretion" of compelling the production of the documents, papers or other written evidence then in the possession, charge or control of relator and connected with the causes, and "in the absence of the abuse of this discretion" the order and citation on relator to permit inspection of such deeds, etc., should be enforced. (2) It was discretionary in the trial court to compel relator to produce the alleged papers and documents for the inspection of the defendant under the provisions of Sec. 1378, R.S. 1919. No abuse of this discretion is shown or claimed. Therefore, the Supreme Court will not reverse the ruling of the trial court in a discretionary matter unless it clearly appears that the discretion has been abused. State v. Fitzgerald, 130 Mo. 407; State ex rel. v. Trimble, 254 Mo. 542; State ex rel. v. Broaddus, 245 Mo. 123. (3) The competency or incompetency of the alleged books, papers, records, etc., sought to be examined was not put in issue by relator before the trial court. For aught that appears from the records it was all competent.
Original proceeding in prohibition. Relator, as Prosecuting Attorney of Jackson County, seeks to prohibit respondent, Judge of the Circuit Court of said county, from making and enforcing an order in the cases of State of Missouri v. D.L. Piggott et al., Nos. 10961, 10962 and 10963 pending in said circuit court, requiring relator to produce for the inspection of the defendants in said causes, written statements of witnesses and other documents and papers alleged to be in the possession of said relator.
Briefly stated, the pertinent facts appearing in the petition are that on August 15, 1929, three indictments against D.L. Piggott et al. were pending in the Circuit Court of Jackson County, each charging said defendants with murder in the first degree. There was and is endorsed on the back of each of said indictments the names of seventy-seven witnesses. On August 16, 1929, defendant Piggott was duly arraigned in Criminal Division A of said circuit court and entered a plea of not guilty. On defendant's application a change of venue was awarded, and said causes were sent to respondent, Judge of Criminal Division B of said court. On August 20, 1929, defendant Piggott filed a motion in said court in which he prayed for an order requiring relator to produce for his inspection written statements made by the witnesses whose names were indorsed on the informations, as well as other papers and documents in relator's possession. This motion reads:
Respondent, as judge of said court, heard this motion on August 26, 1929, and at the conclusion of said hearing, announced that he was bound to follow the opinion of this court in State of Missouri v. Tippett, 317 Mo. 319, 296 S.W. 132, and make an order compelling relator to produce for defendant's inspection the written statements of witnesses and other documents called for in said motion. Thereafter, upon application of relator, our provisional rule in prohibition issued, prohibiting the making of said order. Respondent made return to the provisional rule in which the facts heretofore stated are admitted. Other facts are alleged in the petition for the writ and in respondents' return which we deem immaterial to a determination of the issue presented.
Respondent contends that our decision in State v. Tippett, 317 Mo. 319, 296 S.W. 132, 135, authorizes the making of the proposed order.
At the October Term, 1929, Division One of this court overruled the Tippett case in an opinion written by GANTT, J., in the case of State ex rel. Missouri Pacific Railroad v. Willard P. Hall, Judge of the Circuit Court of Jackson County, et al., 325 Mo. ___, 27 S.W. (2d) 1027. Because the opinion in that case overruled the Tippett case, it was transferred to Court en Banc, where it is still pending. We approve the law as stated in the opinion in that case, and re-state it here as the law — applicable to and decisive of this case. It is as follows:
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