State ex rel. Sansone v. Wofford
| Decision Date | 04 October 1892 |
| Parties | The State ex rel. Sansone v. Wofford, Judge |
| Court | Missouri Supreme Court |
Peremptory writ awarded.
Boland & O'Grady, S.W. McCaslin and C. H. Nearing for relator.
(1) The signing and allowing of a bill of exceptions is a judicial act in the hearing and trying of a case, for the doing of which a judge is disqualified, when he shall have been of counsel in a cause, under section 4174, as well as under the common-law maxim: "No one should be judge in his own cause." Consaul v. Lidell, 7 Mo. 250; Cranor v. School Dist., 18 Mo.App. 397; Connelly v. Leslie, 28 Mo.App. 551; Waterman v. Morgan, 16 N.E. 590; Smith v. Baugh, 32 Ind. 163; Frevert v. Swift, 21 P. 273 (Nev.) ; Oakley v Aspinwall, 3 N.Y. 574; Freeman on Judgments, sec. 146. (2) Under the general rule, only the judge who presided at the trial could sign and allow a bill of exceptions, for the reason that it was the judicial determination of matters within the personal knowledge of the judge. This was the rule in Missouri down to the time of the adoption of the new section 2171, Revised Statutes, 1889. Perkins v Bakrow, 39 Mo.App. 331; Law v. Jackson, 8 Cow. (N Y.) 746; 12 American & English Encyclopedia of Law, pp. 11, 12. Section 2171, Revised Statutes, 1889, changes this rule in the one particular mentioned therein. It does not enable the judge disqualified under section 4174 to sign or allow a bill of exceptions or to do any other judicial act therein merely because he is the successor to the original judge. Neither Judge Wofford nor a special judge elected under the provisions of the statute is a competent person to sign the bill of exceptions, and the writ of mandamus should direct the order for the election of a special judge to grant a new trial to defendant and to conduct such new trial.
John W. Wofford for respondent.
OPINION
Mandamus.
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.
I. 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." Sec. 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 competent to pass upon the bill of exceptions.
II. It is insisted by defendant that the law does not authorize the election of a special judge for the sole purpose of allowing and signing a bill of exceptions, but that it must be for the entire trial and hearing of the case.
Section 4175 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 of such court shall be deemed incompetent to hear and try said cause."
The authority given to such judge is contained in section 4176 of the statute which provides that "such special judge shall possess during such trial or hearing and in relation thereto only, 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...
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