Ex parte Bedard
| Citation | 17 S.W. 693,106 Mo. 616 |
| Parties | Ex Parte Bedard |
| Decision Date | 16 November 1891 |
| Court | Missouri Supreme Court |
Prisoner discharged.
Martin & Bass for petitioner.
(1) The filing by the defendant of the required affidavit, under section 4174, Revised Statutes, 1891, rendered the judge of the St. Louis court of criminal correction incompetent, and disqualified him as the judge of said court from hearing the case or exercising the powers of an examining magistrate in the particular instance. All acts done after the filing of the affidavit were coram non judice. State v Bulling, 100 Mo. 87; State v. Shipman, 93 Mo 147; State v. Hayes, 81 Mo. 574; State v Shea, 95 Mo. 85; State v. Greenwade, 72 Mo. 298; State v. Brownfield, 83 Mo. 448. Same rule applies in civil cases. Lacy v. Barrett, 75 Mo. 469; Corpenny v. Sedalia, 57 Mo. 88; Barnes v. McMullin, 78 Mo. 260; Dawson v. Dawson, 29 Mo.App. 521. (2) The general law (R. S. 1889, sec. 4174) applies to all courts of record exercising criminal jurisdiction, and applies to the court of criminal correction. State v. Hayes, 81 Mo. 574; State v. Shea, 95 Mo. 85. (3) The provisions of our criminal code applicable to the circuit court and the judges thereof are also applicable to any other court of record exercising criminal jurisdiction, and the judges thereof, where no other provision is made. R. S. 1889, sec. 4303. The St. Louis court of criminal correction is a criminal court exclusively. It is a court of record, possessing all the powers, performing all the duties, and subjected to all the restrictions of a court of record, according to the laws of the state. R. S. 1889, chap. 19, secs. 1, 2, p. 2152. (4) The judge of the St. Louis court of criminal correction shall possess the qualifications of a judge of the circuit court. Sec. 3. The proceedings in the St. Louis court of criminal correction shall be governed by the laws regulating proceedings and practice in criminal cases, so far as applicable. Sec. 16. (5) The defendant, after the overruling of the application for a special judge, filed his application for a change of venue, under Revised Statutes, 1889, section 4343. Said application should have been sustained. There is not a word in the statute indicating that the judge of the St. Louis court of criminal correction was to have exclusive jurisdiction as examining magistrate in the city of St. Louis. In such cases the rule is that the jurisdiction is concurrent. Tacket v. Vogler, 85 Mo. 480; Richardson v. Palmer, 24 Mo.App. 480; Purdy v. Gault, 19 Mo.App. 191; 2 R. S. 1889, sec. 7, art. 19, p. 2153. (6) Want of jurisdiction renders every pretended legal proceeding a nullity, and is the proper inquiry under a writ of habeas corpus. Ex parte Snyder, 64 Mo. 54; Ex parte McDonald, 19 Mo.App. 370; Ex parte Woolridge, 30 Mo.App. 612; People v. Devine, 5 Park. 62; In the Matter of Millington, 24 Kansas, 214; Ex parte Jones, 27 Ark. 349; Ex parte Lang, 18 Wall. 163; Com. v. Leck, 26 Am. Dec., note to page 41.
Robert W. Goode for respondent.
(1) Revised Statutes, 1889, section 4174, do not apply to the St. Louis court of criminal correction; it is neither a circuit nor a criminal court. (2) Section 4303, Revised Statutes of Missouri, 1889, does not apply to the court of criminal correction, because, by the terms of said section, said court is specifically excepted from its operation, different provision having been made by law for the government and control of said court and its judges. It is a court of limited jurisdiction, with powers and duties defined by a special act of the legislature creating it. Laws of 1869, page 194 (secs. 4343, 4344, R. S. 1889), clearly express in unmistakable language that they refer solely to justices of the peace. Section 4346, Revised Statutes of Missouri, 1889, provides simply that the three preceding sections shall extend "to cases brought before justices or other magistrates * * * so far as applicable." This last sentence is fatal to the contention of petitioner. Said section cannot be made applicable to the St. Louis court of criminal correction, for, should the judge of said court allow a change of venue, there is no tribunal to which he could legally send the case for trial. It is a familiar rule of statutory construction that a statute must be construed so as to make sense out of it if possible. By this rule the said section cannot be held to apply to the St. Louis court of criminal correction, for to do so would make it nonsensical, and render it a useful ally to give a defendant the legal right to a change of venue from a court having jurisdiction to grant said change and yet having no forum provided whereto to send it. This would be a meaningless construction, not to be adopted. If the contention of petitioner be correct, then the judge of the St. Louis court of criminal correction should have allowed the change of venue upon the filing of the affidavit in due form and thereupon have immediately transmitted all the original papers and a transcript of all his docket entries in the case to the next nearest justice in the township, etc. R. S. 1889, sec. 4344. Who is the next nearest justice to the St. Louis court of criminal correction in the city of St. Louis? This court may answer the question. I cannot. Nowhere is it declared that the judge of the St. Louis court of criminal correction is or ever acts as a justice of the peace. In section 7, page 195, Acts of 1869, it is declared that: "In cases of felony he shall and may exercise all the powers of an examining magistrate." An examining magistrate may, but need not necessarily, be a justice of the peace. R. S. 1889, secs. 4008, 4021. It would appear from the above that, as there is no other judge, justice or court to which the judge of the St. Louis court of criminal correction could send a case taken from his court by change of venue, then he cannot send a change of venue, and, therefore, cannot legally grant one, wherefore the writ herein should be dismissed.
Habeas Corpus.
Emanuel Bedard was, on proper process, arrested upon a charge of felony and taken before the St. Louis court of criminal correction for preliminary examination, in June, 1891. On the twenty-sixth day of that month he filed an affidavit, supported by two persons, to the effect that James R. Claiborne, judge of said court, was so prejudiced against relator that he could not have a fair and impartial trial before him and applied for the election of a special judge. This application being overruled, relator made another affidavit to the same effect, and asked to have the case sent to some justice of the peace in the city of St. Louis for hearing and determination. This also being overruled, the court, Judge Claiborne presiding, tried the case, and held relator to answer an indictment that might be preferred against him for the offense charged, and, upon his failure to enter into recognizance in the sum of $ 300, he was imprisoned in jail, upon a warrant of commitment issued from said court dated June 30, 1891, to await the action of the grand jury. Relator now seeks in this proceeding to be released from such imprisonment.
Two questions arise for decision herein: First. Did the relator have a legal right to a change of venue from the St. Louis court of criminal correction upon the filing of the affidavits above named? Second. Is the writ of habeas corpus the proper remedy in a case of this character?
I. To answer the first question it becomes necessary to inquire into the character and constitution of the court of criminal correction. The powers and jurisdiction of that court and the judge thereof are prescribed by article 19 of the laws especially applicable to the city of St. Louis. R. S. 1889, p. 2152. From the provisions of that article it appears: First. That that court is a court of record. Second. The judge of that court is a conservator of the peace within the city of St. Louis, and in cases of felony he has and may exercise all the powers of an examining magistrate, but "all warrants and processes in such cases shall be issued under the hand of the clerk of said court with the official seal of said court affixed and all such examinations shall be conducted during the open session of said court." Third. "Said court shall have exclusive original jurisdiction of all misdemeanors triable in the city of St. Louis, the punishment whereof is by fine or imprisonment in the county jail or both," etc. Fourth. "The proceedings of said court shall be governed by the laws regulating proceedings and practice in criminal cases, so far as the same may be applicable."
Section 4303 of the criminal code provides that "the provisions of this code, applicable to the circuit court and the judges thereof, shall also be applicable to any other court of record exercising criminal jurisdiction, and the judges thereof, in all cases when no other or different provision is made by law for the government and control of such courts or judges." There being no provision, in the statute establishing the court of criminal correction, for a change of venue from that court on account of the prejudice of the judge, and it being a court of record, this section extends the provisions of the criminal code to it. Let us examine these provisions, then, and see whether Judge Claiborne should have ordered the election of a special judge or called in another regular judge to conduct the preliminary examination in the case.
Section 4174, Revised Statutes, 1889, provides that "when any indictment or criminal prosecution shall be pending in any circuit or criminal court, the judge of said court shall be deemed incompetent to hear and try said cause * * * when the defendant...
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Ex parte Lucas
... ... court to do but deny the writ. In re Wooldridge, 30 ... Mo.App. 612, the prisoner was very properly discharged on ... habeas corpus because it was apparent of record that the ... local option law was adopted at a void election. In Ex parte ... Bedard, 106 Mo. 616, 17 S.W. 693, an affidavit was filed ... which disqualified the judge of the court of criminal ... correction, but who nevertheless committed the defendant, and ... it was ruled that the judge having been disqualified had no ... jurisdiction to imprison defendant, and so he was ... ...