In re Bedard

• Decision Date: 16 November 1891
• Citation: 106 Mo. 616,17 S.W. 693
• Parties: In re BEDARD.
• Court: Missouri Supreme Court

17 S.W. 693

106 Mo. 616

In re BEDARD.

Supreme Court of Missouri, Division No. 2.

November 16, 1891.

DISQUALIFICATION OF JUDGE — PRELIMINARY EXAMINATION — RELEASE ON HABEAS CORPUS.

1. Since the provision of Rev. St. Mo. 1889, § 4174, that in any criminal prosecution the judge shall be deemed incompetent to try the cause when the defendant shall file certain affidavits that the judge will not afford him a fair trial, applies to the St. Louis court of criminal correction, under Crim. Code Mo. § 4303, providing that such Code shall be applicable to any court of record exercising criminal jurisdiction, that court being, under Rev. St. Mo. 1889, p. 2152, a court of record, and its judge having, in cases of felony, the powers of an examining magistrate, and since the preliminary examination of one charged with a felony is a "criminal prosecution," the judge of said court has no jurisdiction to make the same when such affidavit as to his fairness is made and filed.

2. Habeas corpus lies to release one imprisoned under such commitment, under Rev. St. Mo. 1889, § 5378, which provides that a prisoner in custody by virtue of process from any court legally constituted, or issued by any officer in the service of judicial proceedings before him, can be so discharged when the jurisdiction of such court has been exceeded.

Application for habeas corpus by Emannel Bedard. Writ granted.

Martin & Bass, for petitioner. Robt. W. Goode, for respondent.

THOMAS, J.

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 26th 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 any indictment that might be preferred against him for the offense charged; and, upon his failure to enter into recognizance in the sum of $800, 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: (1) 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? (2) Is the writ of habeas corpus the proper remedy in a case of this character?

1. 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 this court and the judge thereof are prescribed by article 19 of the laws especially applicable to the city of St. Louis. Rev. St. 1889, p. 2152. From the provisions of that article it appears: "(1) That that court is a court of record. (2) 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. (3) 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. "(4) The proceedings of said court shall be governed by the laws regulating the 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, Rev. St. 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 shall make and file an affidavit, supported by the affidavit of at least two reputable persons, not of kin or counsel for the defendant, that the judge * * * will not afford him a fair trial." Other sections of the statute then provide for the election of a special judge, or the calling in of the judge of another circuit, to dispose of the case. The determination of the question here hinges upon the scope and meaning of the words "criminal prosecution," as used in section 4174, supra. We have no doubt they include a criminal information for a misdemeanor, but it is not so clear that they include a preliminary examination for a felony, and resort must therefore be had to constitutional provisions and statutes in pari materia.

The constitution of Missouri provides that "in all criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel." It will hardly be contended, we presume, that the legislature would have the right to pass a law prohibiting the accused from appearing and defending in person and by attorney in a preliminary examination on the ground that it was not "a criminal prosecution," within the meaning of this constitutional provision. A preliminary examination from its inception to its close is carried on in the name of the state, and its object is to detect crime and the criminal. In State v. Williams, 34 La. Ann. 1198, the supreme court of Louisiana says: "Under our system of criminal law a prosecution has several phases or steps of proceeding; the first being usually an affidavit or charge; next, a warrant of arrest; and so on through the hands of the committing magistrate, whose committal transfers the prosecution to the proper criminal court, where it undergoes the other phases of presentment, arraignment, trial, and conviction or acquittal. * * * If the proceedings had before the committing magistrate are not a prosecution in the legal sense, where would be the authority for detaining the accused in legal custody, or what would be the legal value of the bond...