State ex rel. Sansone v. Wofford

• Decision Date: 04 October 1892
• Parties: STATE ex rel. SANSONE v. WOFFORD, Judge.
• Court: Missouri Supreme Court

20 S.W. 236

111 Mo. 526

STATE ex rel. SANSONE v. WOFFORD, Judge.

Supreme Court of Missouri, Division No. 2.

October 4, 1892.

JUDGE — SIGNING BILL OF EXCEPTIONS — DISQUALIFICATION.

1. Rev. St. 1889, § 2171, provides that, where a judge who heard the case goes out of office before signing the bill of exceptions, it shall be signed by his successor in office. Section 3247 provides that no judge "who shall have been counsel in any suit or proceeding pending before him shall, without the express consent of the parties thereto, sit on the trial or determination thereof." Held, that an attorney in a criminal case who succeeded to the judgeship after trial, and before the allowance of a bill of exceptions, is not competent to pass on such bill.

2. Rev. St. § 4174, provides for the election of a special judge "when any indictment or criminal prosecution shall be pending in any circuit or criminal court, and the judge" is incompetent to "hear or try" said cause. Section 4176 provides that "such special judge shall possess all the powers, perform the duties, and be subject to the same restrictions as the judge of said court, but shall have no power whatever in any other cause than the one specified in the order of record." Held where, upon the death of the judge who tried a criminal case, his successor in office was disqualified to settle a bill of exceptions therein, that the statute authorized the election of a special judge therefor.

3. Such special judge is the direct successor of the regular judge before whom part of the trial had already taken place, and takes up the case at the point where it was laid down by him.

Mandamus by the state of Missouri at the relation of Tony Sansone, against John W. Wofford, judge of the criminal court of Jackson county, Mo. Peremptory writ granted.

Boland & O'Grady, S. W. McCaslin, and C. H. Nearing, for relator. John W. Wofford, for respondent.

MACFARLANE, J.

Relator, Tony Sansone, was indicted, tried, and convicted of murder, in the criminal court of Jackson county, before Judge WHITE, who was the judge of said court. A motion for a new trial was filed and overruled, after which, and before the end of the term, and before the bill of exceptions in the case had been allowed, Judge WHITE died. The defendant Wofford, who had acted as attorney for relator throughout the trial, was appointed judge of said criminal court. At the same term of court at which the trial was had, defendant made application to the court for the election of a special judge to settle and allow a bill of exceptions. The request was made on the ground that the judge of the court was disqualified by reason of having been counsel for defendant. This application was by the court overruled. This proceeding is by mandamus to compel the judge of said court to make an order for the election of a special judge for the purposes claimed. The facts are undisputed.

1. The construction of section 2171 is involved in the decision of this case. The section is as follows: "In any case where the judge who heard the cause shall go out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to be correct, shall be signed by the succeeding or acting judge of the court where the case was heard." The first question for consideration is whether the present judge of the criminal court of Jackson county, who was an attorney for defendant throughout the proceeding had before Judge WHITE, was authorized, under said section, to approve and sign the bill of exceptions. It is a maxim of common law, the wisdom and propriety of which will not be questioned, that "no one should be a judge in his own cause." Provision has always been made, in case of the disqualification of a judge to sit in any case, by reason of his interest therein, to supply a substitute to hear and determine the case. This interest which disqualifies a judge is always made to include that which an attorney had in a case in which he has professionally acted. Our statute, following this rule, declares that no judge "who shall have been counsel in any suit or proceeding pending before him shall, without the express consent of the parties thereto, sit on the trial or determination thereof." Section 3247. We think, also, that the interest which precludes one from acting as judge in a case, and passing upon the issues therein, would likewise, and for the same reason, forbid his approval and signing of the bill of exceptions. The case is tried in the appellate court frequently upon the facts contained in the bill of exceptions alone, and a final judgment rendered in that court. It is manifest that no part of the proceeding in a case more imperatively demands fair, unprejudiced, and impartial action than that of settling and allowing the bill of exceptions. The other proceedings, in the progress of the case, are subject to review in the appellate courts; but usually the bill of exceptions settles finally and conclusively the facts and issues of law upon which the judgment of the appellate court is to rest. And we do not hesitate in the conclusion that the judge of the court was not...