State ex rel. McAllister v. Slate

• Citation: 214 S.W. 85,278 Mo. 570
• Parties: THE STATE ex rel. FRANK W. McALLISTER, Attorney-General, v. JOHN G. SLATE, Judge of Circuit Court of Cole County
• Decision Date: 14 June 1919
• Court: Missouri Supreme Court

214 S.W. 85

278 Mo. 570

THE STATE ex rel. FRANK W. McALLISTER, Attorney-General, v. JOHN G. SLATE, Judge of Circuit Court of Cole County

Supreme Court of Missouri

June 14, 1919

Preliminary rule made absolute.

Frank W. McAllister, Attorney-General, John T. Gose and Shrader P Howell, Assistant Attorneys-General, and Lee B. Ewing Special Counsel, for relator.

(1) Prohibition is the proper remedy where a court or judge assumes to exercise powers not granted by law, whether the exercise of the power is attempted in a case which the court is not authorized to entertain at all, or is merely an excessive and unauthorized application of judicial power in a cause otherwise properly cognizable by the court or judge in question. State ex rel. v. Fort, 210 Mo. 525; State ex rel. v. McQuillin, 256 Mo. 703; St Louis Railroad Co. v. Wear, 135 Mo. 256; State ex rel. v. Withrow, 135 Mo. 376; State ex rel. v. Wear, 129 Mo. 619. (2) The facts clearly show that respondent is prejudiced in the case of State v. Scott. Webster's Unabridged Dictionary; Standard Dictionary; Encyclopediac Dictionary; 22 Am. & Eng. Ency. Law, p. 1173; Ex parte Howell and Ewing, 200 S.W. 65. (3) If a circuit judge is prejudiced in a cause, either for or against the State or the accused, he is incompetent to sit in said cause, and any exercise of jurisdiction therein by him except to certify to his prejudice and take steps to call another judge is beyond his power. Sec. 5198, R. S. 1909; Webster's Unabridged Dictionary; Century Dictionary; Standard Dictionary; Art 6 sec. 29, Mo. Constitution; Secs. 5200, 5201, R. S. 1909; Broom's Legal Max. 125; Ex parte Howell and Ewing, 200 S.W. 65; Jim v. State, 3 Mo. 147; State ex rel. v. Wofford, 111 Mo. 526; State ex rel. v. Wear, 129 Mo. 619; People v. Connor, 142 N.Y. 130; Coal v. Doolittle, 54 W.Va. 210, 227; Commonwealth v. Davidson, 91 Ky. 162; Dimes v. Grand Junction Canal (Eng.), 3 House of Lords Cases, 793. The State has the right, when the judge is prejudiced, to a change of venue from said judge. This was a common-law right and has never been taken away by any provisions of the Constitution or statutes of this State. Sec. 5198, R. S. 1909; 4 Blackstn's Comm. 321; 2 Hale's Pleas of the Crown, chap. 27, p. 201; 1 Pike's History of Crimes in England, 479; Rex v. Cowle, 2 Burr. 859; Rex v. Harris, 3 Burr. 1333; People v. Baker, 3 Park Cr. (N. Y.) 181; Comm. v. Ralph, 111 Pa. 365; People v. Peterson, 93 Mich. 27; Crocker v. Justices, 208 Mass. 167; People v. Webb, 1 Hill, 179; People v. Fuhrmann, 103 Mich. 593; People v. Baker, 3 Abb. Prac. 400; Chitty's Crim. Law and Prac. (Ed. 1847) marg. p. 201; Comm. v. Davidson, 91 Ky. 162; Barry v. Traux, 13 N.D. 131; Hewitt v. State, 43 Fla. 194; State ex rel. v. Durflinger, 73 Ohio St. 154; 1 Bishop's Crim. Prac. secs. 73, 113; Ex parte Howell and Ewing, 200 S.W. 72; State ex rel. v. Wear, 129 Mo. 619; State ex rel. v. Wofford, 111 Mo. 526; Jim v. State, 3 Mo. 147; State v. Gates, 20 Mo. 404; People v. Connor, 142 N.Y. 130; Coal Co. v. Doolittle, 54 W.Va. 227; State v. Holloway, 19 N. M. 528; Queen v. Philan, 14 Cox Crim. Cases, 579; Queen v. Conway, 7 Irish Com. Law Rep. 525.

Irwin & Haley and A. T. Dumm for respondent; Roy Williams of counsel.

(1) The only office of the writ of prohibition is to prevent a usurpation of jurisdiction by a subordinate court. High on Extraordinary Remedies (3 Ed.), secs. 767b-768; Spelling on Injunctions (2 Ed.), sec. 1725. (2) A subordinate court, having jurisdicton over the subject-matter, has the right to determine it, incorrectly as well as correctly; and its judgment will not be interfered with by a superior court through the writ of prohibition. M. K. & T. Ry. Co. v. Smith, 165 Mo. 321; State ex rel. Laclede Bank v. Lewis, 76 Mo. 370; State ex rel. Daugherty v. Hickman, 85 Mo.App. 198; State ex rel. Dawson v. Court of Appeals, 99 Mo. 216. (3) The writ of prohibition is not a disqualifying writ. It leaves the court where it found it, either with or without jurisdiction. The want of jurisdiction must appear independently of the writ, the only office of the writ being to prohibit action without jurisdiction at the time the writ was issued; that such want of jurisdiction arose independently of the writ, either through the filing of the affidavit, by operation of some statute, or by operation of the common law. Spelling on Injunctions (2 Ed.), secs. 1716 et seq.; High on Extraordinary Remedies (3 Ed.), secs. 762 et seq; State ex rel. Morse v. Burckhartt, 87 Mo. 533; State ex rel. Ellis v. Elkin, 130 Mo. 90. (4) The right to a change of venue is purely statutory, and unless some authority is given by statute for the change demanded, none exists. State v. Anderson, 96 Mo. 247; State ex. rel. v. Wofford, 119 Mo. 410; State ex rel. v. O'Hallaron, 144 Mo.App. 574; State ex rel. v. Denton, 128 Mo.App. 304; State v. Headrick, 149 Mo. 396; State v. Barrington, 198 Mo. 85; State v. Greenwade, 72 Mo. 298; State v. Sanders, 106 Mo. 188; State v. Witherspoon, 231 Mo. 716; State v. Dyer, 139 Mo. 209. (5) Secs. 5198, 5199, 5200 and 5201, R. S. 1909, relate to the same subject-matter, and should be construed together as being in pari materia. State ex rel. v. Chemical Works, 249 Mo. 702; Gantt v. Brown, 238 Mo. 560; In re Ryan Estate, 174 Mo.App. 202; Hegberg v. Railroad, 164 Mo.App. 514; State ex rel. McClanahan v. DeWitt, 160 Mo.App. 304; City of Eldon v. Phillips, 180 S.W. 418. (6) Penal statutes must be strictly construed. State ex inf. Collins v. Railroad, 238 Mo. 605; Boyd v. Mo. Pac. Ry. Co., 249 Mo. 110; State v. Shortell, 174 Mo.App. 153.

FARIS, J. Blair, Woodson and Graves, JJ., not sitting.

OPINION

In Banc

Prohibition.

FARIS J.

This is an original proceeding in prohibition, whereby it is sought to prohibit respondent, as Judge of the Circuit Court of Cole County, from taking further jurisdiction in the trial of the case wherein the State of Missouri is plaintiff and John W. Scott is defendant, said cause being No. 1879 upon the docket of the Cole County Circuit Court.

Heretofore, upon the petition of relator by the Attorney-General of the State of Missouri, we issued our preliminary rule in prohibition, which rule it is now sought to make absolute.

The facts upon which it is sought by the State, through its Attorney-General, to prohibit respondent from taking further jurisdiction in the trial of the case of State v. Scott, as these facts are set forth in the petition for our writ, run briefly as follows:

At and prior to the second day of February, 1918, which is the date upon which our preliminary rule herein was issued, there was pending against said John W. Scott, in the County of Cole aforesaid, an indictment in two counts, charging defendant therein with embezzlement and grand larceny. By virtue of an order made by the Governor of the State of Missouri, pursuant to the statute in such cases made and provided, the Assistant Attorney-General, together with Special Counsel for the State, appeared in the Circuit Court of Cole County, and aided in the prosecution of said case of State of Missouri v. Scott. After the making of said order by the Governor, and on the 27th day of November, 1917, the case of State v. Scott came on to be heard before respondent and the State, by Shrader P. Howell, Assistant Attorney-General, and Lee B. Ewing, as Special Counsel for the State, appeared and announced that it was ready for trial. Thereafter, but prior to the impaneling of the trial jury for the trial of the case, said Howell and Ewing became possessed, it is alleged, of information and knowledge of the existence of prejudice on the part of the respondent against the State of Missouri. The State thereupon, through its counsel, withdrew its announcement of ready for trial, and having first obtained leave of court in that behalf, filed a formal, verified motion alleging the disqualification and incompetence of respondent to sit in the trial of the case of State v. Scott on account of the alleged prejudice of said respondent against the State. Thereupon, on the ground of this alleged disqualification of respondent, the State moved that respondent proceed in accordance with the provisions of Section 5201, Revised Statutes 1909. The latter section makes provision for the calling in of a special judge to sit in the trial of any criminal case wherein the regular judge is disqualified.

This motion being overruled, relator made the allegations therein and the fact of overruling such motion the grounds of application for our writ. In the petition for our writ relator avers that respondent is prejudiced against the State in said case of State v. Scott, and by reason thereof that he is incompetent to hear and determine said case, and prays that we issue our writ of prohibition to prohibit respondent from taking further proceedings in, or holding further jurisdiction therein, and from taking further cognizance of said case.

Our preliminary rule was, as above stated, issued, and for return thereto respondent admits all of the allegations of said petition except the fact of his prejudice in any degree in favor of the said Scott, or against the State of Missouri, which fact of prejudice he categorically denies. Respondent further denies that Messrs. Howell and Ewing, as Assistant Attorney-General and Special Counsel as aforesaid, were legally in full charge of the prosecution in the case of State v. Scott, and avers the fact to be that their acts in that behalf are without authority and not warranted by the law of the State of Missouri. This latter allegation is not referred to in the briefs, and we assume therefore that it has been abandoned.

The denial by respondent of the alleged fact of his prejudice raised an issue of fact in the case. Thereupon this court...