State ex rel. Griffin v. Smith

• Decision Date: 08 June 1953
• Docket Number: No. 43654,43654
• Citation: 363 Mo. 1235,258 S.W.2d 590
• Parties: STATE ex rel. GRIFFIN, Pros. Atty. of Clinton County, v. SMITH, Judge.
• Court: Missouri Supreme Court

Page 590

258 S.W.2d 590

363 Mo. 1235

STATE ex rel. GRIFFIN, Pros. Atty. of Clinton County, v. SMITH, Judge.

No. 43654.

Supreme Court of Missouri, en Banc.

June 8, 1953.

John M. Dalton, Atty. Gen., W. Brady Duncan, Sp. Asst. Atty. Gen., Melvin Griffin, Pros. Atty., Clinton County, Cameron, for plaintiff.

Clay C. Rogers, Lyman Field, Kansas City, John J. Robinson, Maysville, for respondent. David J. Dixon, Kansas City, of counsel.

CONKLING, Chief Justice.

This is an original proceeding in prohibition instituted here by relator, Melvin E. Griffin, who became Prosecuting Attorney of Clinton County, Missouri, on January 1, 1953. The proceeding challenges the jurisdiction of respondent, the Honorable Duval Smith, Special and Acting Judge of the Circuit Court of Andrew County, Missouri, to proceed further in a certain criminal cause now before respondent as such judge in said circuit court. There is here sought the determination of the fundamental question of whether a prosecuting attorney, without the leave or permission of the circuit court in which a criminal prosecution is pending, may enter in such criminal prosecution the State's nolle prosequi or dismissal, or whether the circuit court has such power of judicial superintending control over a prosecuting attorney that the State's nolle prosequi of a pending criminal cause may be entered only with the permission and consent of such circuit court.

After we ordered the issuance of our preliminary rule in prohibition the appearance of respondent was entered herein, and the actual issuance and service of the preliminary rule was waived. Respondent then filed his return and his motion praying judgment upon the pleadings.

Incorporated in respondent's return, and in addition to his admission therein of certain basic facts, are certain 'Denials' and 'Affirmative Pleadings' undertaking to raise various propositions not affecting the merits of the fundamental question presented. Inasmuch as the basic facts are not in dispute and we deem the fundamental question presented to be one of law, we shall so consider it without unduly extending this opinion to here make any labored restatement of the various matter in the anomalous 'Denials' and 'Affirmative Pleadings' incorporated in the return.

The above stated question is raised by the parties from the following facts:--On December 29, 1952, the then Prosecuting Attorney of Clinton County, Missouri, Mr. Robert Frost, filed in the Circuit Court of Clinton County an information charging one George Robert Fitzgerald with the first degree murder of his wife, Mildred Fitzgerald; thereafter, and on January 17, 1953, upon the application of defendant, George Robert Fitzgerald, a change of venue was granted from Clinton County in that criminal prosecution and the cause was sent for trial to Andrew County, Missouri, in the same Judicial Circuit, thereafter, upon motion of defendant, the Honorable Fred H. Maughmer, Judge of said Circuit Court, was disqualified and the Honorable Ray Weightman, Judge of the Fourth Judicial Circuit, was called in to act as Judge in said cause; and thereafter, on February 9, 1953, Judge Weightman was disqualified under our Rule 30.12 and the respondent herein, a regular Judge of the sixth Judicial Circuit, was called in to act as Judge in said cause in Andrew County; and on that last date said cause was set for trial for February 16, 1953. Upon that date the parties by counsel appeared before respondent in said court and defendant personally waived a jury trial and respondent assented thereto.

It is alleged that after relator was inducted into office as prosecuting attorney on January 1, 1953, and before February 16, 1953, 'due to the tremendous amount of preparation necessary to obtain substantial justice to the people of Clinton County and the State of Missouri,' relator did not have sufficient time to properly prepare that criminal prosecution for trial. It is admitted that the State, on February 16, 1953, filed in said cause in the Andrew County Circuit Court, before the respondent judge, a motion for continuance of the trial of said cause; that such motion for continuance was overruled and the respondent judge then and there ordered that the cause proceed to trial; that thereupon, the relator, as prosecuting attorney, both orally and in writing, entered in said cause the State's nolle prosequi and dismissal of said cause; and that thereupon the respondent judge refused to permit the relator, acting as prosecuting attorney, to nolle prosequi or discontinue said criminal prosecution and ordered that the cause proceed to trial. On February 17, 1953, relator, as prosecuting attorney of Clinton County, filed his official complaint in the Magistrate Court of Clinton County, again charging George Robert Fitzgerald with first degree murder of his wife, Mildred Fitzgerald. Thereafter, on February 18, 1953, relator filed here his petition praying our preliminary rule, which we ordered issued. By an indictment of a Clinton County grand jury George Robert Fitzgerald is now charged with the above offense in the Circuit Court of Clinton County.

Respondent's theory of this case, as shown by his counsel's brief and their oral argument here, is that in refusing to permit the prosecuting attorney to dismiss or nolle prosequi the criminal prosecution the respondent judge 'was acting in a proper exercise of the judicial power of superintending control in ordering the trial to proceed.'

Relator's theory of this case, as shown by his brief and oral argument here, is that the prosecuting attorney had 'the power in the exercise of his discretion in performing the duties of his office to dismiss or nolle prosequi the case,' and that the respondent judge had no 'power to interfere in the exercise of the prosecuting attorney's discretion and prevent said dismissal or assume further jurisdiction.' In Missouri it has been recognized that a prosecuting attorney 'is a quasi judicial officer, retained by the public for the prosecution of persons accused of crime, and in the exercise of a sound discretion to distinguish between the guilty and the innocent, between the certainly and the doubtfully guilty.' State on Inf. of McKittrick v. Wymore, 345 Mo. 169, 132 S.W.2d 979, 986.

When the law, in terms or impliedly, commits and entrusts to a public officer the affirmative duty of looking into facts, reaching conclusions therefrom and acting thereon, not in a way specifically directed, [i. e., not merely ministerially] but acting as the result of the exercise of an official and personal discretion vested by law in such officer and uncontrolled by the judgment or conscience of any other person, such function is clearly quasi judicial. This court has written much upon the broad discretion vested in a public prosecutor. State on Inf. of McKittrick v. Wymore, supra; State on Inf. of McKittrick v. Wallach, 353 Mo. 312, 182 S.W.2d 313, 318, 319. In this jurisdiction it is recognized that this public office is one of consequence and responsibility. The status of the prosecuting attorney as a public officer is given dignity and importance by our statutes. Sections 56.010 to 56.620 RSMo 1949, V.A.M.S. With every other attorney at law a prosecuting attorney is, of course, an officer of the court in a larger sense; but he is not a mere lackey of the court nor are his conclusions in the discharge of his official duties and responsibilities, in anywise subservient to the views of the judge as to the handling of the State's cases. A public prosecutor is a responsible officer chosen for his office by the suffrage of the people. He is accountable to the law, and to the people. He is 'vested with personal discretion intrusted to him as a minister of justice, and not as a mere legal attorney. He is disqualified from becoming in any way entangled with private interests or grievances in any way connected with charges of crime. He is expected to be impartial in abstaining from prosecuting as well as in prosecuting, and to guard the real interests of public justice in favor of all concerned.' Engle v. Chipman, 51 Mich. 524, 16 N.W. 886, 887. 'The sovereign power of government can only be exercised through its officers. Consequently, to each officer is delegated some of the powers and functions of government. Usually a discretion that is...