State v. Irvine

• Decision Date: 17 May 1934
• Docket Number: 33444
• Citation: 72 S.W.2d 96,335 Mo. 261
• Parties: The State v. Frank Irvine, Appellant
• Court: Missouri Supreme Court

72 S.W.2d 96

335 Mo. 261

The State v. Frank Irvine, Appellant

No. 33444

Supreme Court of Missouri

May 17, 1934

Appeal from Boone Circuit Court; Hon. W. M. Dinwiddie Judge.

Reversed and remanded.

Don C. Carter for appellant.

"Because the Honorable W. M. Dinwiddie, judge of the circuit court in which said cause was pending, was disqualified and incompetent under the provisions of Section 3648, Revised Statutes of Missouri, for 1929, to hear and try said cause and would not afford defendant a fair trial on account of his prejudice against defendant and bias in favor of the State. The defendant having duly made and filed with the clerk of this court an affidavit, supported by the affidavit of two reputable persons, not of kin to or counsel for the defendant, that the Honorable W. M. Dinwiddie, judge of the court in which said cause was pending, would not afford the defendant a fair trial on account of such prejudice against the defendant." The following cases show conclusively that the court committed reversible error, in failing to sustain defendant's affidavit disqualifying the trial judge to sit in the case: State v. Freliegh, 8 Mo 607; State v. Greenwade, 72 Mo. 298; State v Cavenaugh, 76 Mo. 53; State v. Lavelle, 78 Mo. 105; State v. Hayes, 81 Mo. 579; State v. Bromfield, 83 Mo. 451; State v. Shipman, 93 Mo. 147; State v. Spivey, 191 Mo. 87; State v. Witherspoon, 231 Mo. 706; Ex parte Howell, 273 Mo. 96; State ex rel. v. Slate, 278 Mo. 570; State v. Caldwell, 245 S.W. 626; State v. Duckworth, 297 S.W. 150; State v. Myers, 14 S.W.2d 447; State v. Bryant, 24 S.W.2d 1008; State v. Mitts, 29 S.W.2d 125; State v. Creighton, 52 S.W.2d 556. The right to a change of venue, or substitution of another judge to try the cause in place of the regular judge, is purely statutory. But it is well-settled law in this State, that when the statute governing the procedure has been complied with, it is "imperative" or "mandatory" upon the trial judge to substitute another judge. The statute applicable to the facts in the case at bar is Section 3648, Revised Statutes 1929.

Roy McKittrick, Attorney-General, and Wm. W. Barnes, Assistant Attorney-General, for respondent.

(1) Granting of continuance is discretionary and appellate court will not interfere unless discretion is abused. State v. Henson, 290 Mo. 244; State v. Parker, 106 Mo. 221; State v. Yowell, 55 S.W.2d 994. (2) Affidavit for change of venue, filed, was insufficient and court's action discretionary. State v. Ballew, 9 S.W.2d 253; State v. Caudle, 174 Mo. 391; State ex rel. v. Landon, 28 S.W. 662; State v. Bryant, 24 S.W.2d 1010; State v. Witherspoon, 231 Mo. 716; State v. Davis, 203 Mo. 621.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

By information in the Circuit Court of Boone County the defendant was charged with forgery for having falsely made and forged a bill of sale of an automobile. Upon trial he was convicted and sentenced to six years' imprisonment in the penitentiary and from the judgment he has appealed. The question requiring consideration on this appeal arises out of the court's refusal to grant defendant's application for a change of venue or, to speak more accurately, the substitution of another judge, because of the disqualification of the regular judge.

Defendant was arrested and taken before a magistrate in July, 1933, where he waived preliminary examination and gave bond for his appearance at the ensuing October Term of the circuit court. On September 1, 1933, in vacation of the circuit court, the prosecuting attorney filed information charging defendant with the offense. It appears that shortly before the beginning of the October Term of the circuit court the judge arranged the docket for the term, setting this case down for trial for October 13. Defendant was not then present but a week or so before the date set for trial he was notified by the prosecuting attorney of the setting of the case. He had not yet employed counsel and did not do so until the evening of October 12. On the morning of the 13th he appeared with his counsel, entered a plea of not guilty and his counsel then orally requested the court to reset the case for a later day in the term so as to allow him time to prepare for the trial, stating to the court that he had been employed only the evening before, had had no opportunity to make any preparation and did not feel able to try the case without some preparation. The prosecuting attorney had not definitely answered ready, but stated that he expected to as soon as his witnesses arrived and he protested against a resetting or postponement of the case. The court declined to grant the request for a resetting of the case. Defendant's counsel then asked for time to confer with his client, which was granted and they retired from the court room. The bill of exceptions then recites: "And now, after an intermission, the defendant, by this counsel, filed his affidavit, same being in words and figures as follows, with affidavit in support thereof, to-wit:" Omitting captions and jurats, the affidavits, both sworn to before the circuit clerk on said October 13th, are as follows:

"Now comes the above named defendant, Frank Irvine, in person, and upon his oath, having been first duly sworn, states that the Honorable W. M. Dinwiddie, Judge of the circuit court of Boone County, Missouri, in which this cause is now pending, will not afford him a fair trial, for the reason that the said judge of this court is prejudiced against the defendant and is biased in favor of the State.

"Frank Irvine,

"Affiant (Defendant)."

"We the undersigned I. F. Brown and Obie Williams, reputable persons, not of kin to or counsel for the defendant, first being duly sworn, upon our oaths state that we believe that the Honorable W. M. Dinwiddie, Judge of this Court, will not afford the defendant, Frank Irvine, a fair trial in this cause, on account of the prejudice of said judge against the defendant, and on account of his bias in favor of the state,

"I. F. Brown

"Obie Williams."

The prosecuting attorney objected to the granting of the application on the ground that defendant's affidavit was not in due form because it did not allege when knowledge of the judge's prejudice came to the defendant, whereupon defendant's counsel stated that if that allegation was necessary he would ask leave to amend the affidavit. The judge intimated that he thought the allegation necessary. Defendant asked leave to amend the affidavit by adding such allegation, which leave the court refused and overruled the application on the ground that without such allegation the affidavit was insufficient. Defendant made further efforts before the jury was sworn to obtain leave of court to file an amended affidavit showing that knowledge of the judge's prejudice first came to him that morning and that his application was presented as soon as possible thereafter, which leave was denied. Defendant also made oral but equally unsuccessful protest against the regular judge proceeding with the trial on the ground that said judge was prejudiced and would not give him a fair trial, and when all his efforts to obtain the substitution of another judge proved fruitless he refused to take part in the trial, which followed. It proceeded in his presence but without his participation. Defendant saved exceptions to the court's rulings above mentioned, and filed timely motion for a new trial and a bill of exceptions in which said matters are properly preserved for review.

The circuit court based its ruling on State v. Ballew, 9 S.W.2d 253, by the Springfield Court of Appeals, wherein the defendant's affidavit failed to state when he discovered the alleged prejudice of the judge. Before filing said affidavit the defendant therein had, on the same day, pleaded not guilty, announced ready for trial, withdrawn such plea, asked for a severance which was granted (there being two defendants) and filed motion to quash the information which was overruled. The court said:

"The affidavit does not allege when the defendant discovered the alleged prejudice of the judge, and under the facts disclosd pertaining to the application and affidavit such allegation was essential, and, absent such allegation, the affidavit for a change of venue was not sufficient."

The court cited State v. Caudle, 174 Mo. 288, 74 S.W. 621 and State ex rel. Lafferty v. Landon (Mo. App.), 289 S.W. 661, 662, in support of its ruling.

In the Caudle case the court disposed of the question thus, 174 Mo. l. c. 391: "There was no error in denying the motion for a change of venue. Outside of the fact that it was not offered for filing until after all the jurors had been examined on their voir dire and a panel selected from which to obtain twelve jurymen, and after the State had made its challenges and the defendant had completed his challenges, it nowhere discloses any diligence. It does not appear when the defendant discovered the alleged bias of the judge. The courts are not to be trifled with after this manner; but no exception was saved, and the point is untenable."

In State ex rel. v. Landon, supra, the relator had, on June 28 1926, filed several motions and after they had been overruled, had then filed an application for "change of venue" because of the alleged prejudice of the judge, which had been verified by him on June 22, six days previously. The court said the application "was in due form," but held that the relator had shown gross lack of diligence in thus waiting six days after information of the judge's alleged prejudice had come to him and in the meantime submitting to the judge's jurisdiction and obtaining his judgment on the motions and pleas filed on June 28. It is obvious that on the facts involved State...