State ex rel. Brown v. Walls
| Decision Date | 19 December 1892 |
| Citation | 20 S.W. 883,113 Mo. 42 |
| Parties | The State ex rel. Brown v. Walls, Special Judge |
| Court | Missouri Supreme Court |
Writ awarded.
J. J Williams for relator.
John O'Grady for respondent.
Prohibition.
This is an application by relator for a writ of prohibition to prevent respondent from granting a new trial in the case of the State v. Antone Sansone, and from trying the case again.
It appears that Sansone, having been found guilty by a jury, of murder of the second degree at the January term for 1892 of the criminal court of Jackson county, filed his motion for new trial, which was continued till the April term of that court. On the nineteenth day of July, it still being the April term, the motion for new trial was overruled, and Sansone was duly sentenced to imprisonment in the penitentiary. Court then adjourned to the twenty-ninth day of July, and in the meantime Hon. H. P. White, the judge of said court, died, and John W. Wofford, who had been Sansone's attorney, was appointed as Judge White's successor. On August 12, Sansone filed an affidavit and application for appeal, and by his consent the time for filing a bill of exceptions was extended first to the twentieth and then to the twenty-fifth day of August, at which last date he filed a motion for the election of a special judge to pass on his application for an appeal and on his bill of exceptions, which was overruled and by his consent the time for filing his bill of exceptions was again extended to the third day of September, on which day the court granted him an appeal and extended the time for filing the bill of exceptions for sixty days, to which he excepted. The court then adjourned for the term.
Afterwards Sansone applied to this court for a mandamus to compel Judge Wofford to order the election of a special judge to pass on his bill of exceptions, which was granted on the fourth day of October. The opinion rendered in that proceeding, which was entitled State ex rel. Sansone v. Wofford, will be found in 111 Mo. 526, 20 S.W. 236. In compliance with the ruling of the court in that proceeding, Judge Wofford, on the twenty-sixth day of October, ordered the election of a special judge "to take up and dispose of said cause according to law," and on the twenty-ninth day of that month respondent was duly elected such special judge, and he set the case for November 19, at which latter date Sansone filed another motion for new trial, setting up as grounds therefor errors alleged to have been committed by the court, while Judge White presided, and in addition thereto the inability of the special judge to settle and pass upon a bill of exceptions. This motion was sustained, and a new trial granted against the objection of the prosecuting attorney, who now seeks by this proceeding to prohibit respondent from retrying the case.
Respondent in his return to the provisional writ of prohibition, among other things states that Sansone, in March, 1892, filed a motion to strike from the files of the case an exhibit accompanying counter-affidavits presented by the prosecuting attorney in relation to the motion for new trial, which the court never disposed of, and, in support of the jurisdiction which he assumed to exercise in granting a new trial and which he claims he possesses to retry the case, he states "that no bill of exceptions has been presented which has been agreed upon by the state and defendant herein or their attorneys, and no bill of exceptions has been tendered and shown to this respondent to be correct, and that owing to the fact that disputed questions of fact are presented in the record of which the respondent has no personal knowledge and could acquire none and that motions have been left undecided by Judge White and as it is impossible for the respondent to satisfy himself of the correctness of any bill of exceptions in said cause, he, therefore, granted the defendant Antone Sansone a new trial in order that full and complete justice might be done."
I. The rule was well settled in this state, prior to 1889, that where a judge who tried a case went out of office before passing on the motion for a new trial or signing a bill of exceptions, the succeeding judge, in order to prevent injustice, should award a new trial. Woolfolk v. Tate, 25 Mo. 597; Cocker v. Cocker, 56 Mo. 180; Consaul v. Lidell, 7 Mo. 250; State v. Boogher, 3 Mo.App. 442.
Section 2171, Revised Statutes, 1889, quoted in the opinion in State ex rel. v. Wofford, supra, was intended to abolish and did abolish this rule so far as it applied to a bill of exceptions, in order to secure to the party his right to a bill of exceptions and to avoid the expense and delay of another trial. The status of this case then is precisely what it would have been had the judge who tried the case not died, and the jurisdiction of respondent to grant a new trial must be tested by the same principles as would have applied if Judge White still presided over the court.
II. It is conceded on all hands that if respondent has jurisdiction to grant or refuse a new trial in the case named, prohibition will not lie. There is a well recognized distinction between an act done in the exercise of jurisdiction and act done where no jurisdicton is given. In the former case the act, however erroneous it may be, is not void and cannot be attacked collaterally; whereas in the latter case it is absolutely void and can be called in question directly and collaterally.
III. This brings us therefore to the controlling...
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