State v. Able

• Court: United States State Supreme Court of Missouri
• Writing for the Court: NORTON
• Citation: 65 Mo. 357
• Decision Date: 31 October 1877
• Parties: THE STATE v. ABLE, APPELLANT.

65 Mo. 357

THE STATE
v.
ABLE, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Jasper Circuit Court.--The case was tried before SAMUEL G. WILLIAMS, ESQ., sitting as Special Judge.

W. C. Robinson, T. B. Haughawout and Wm. H. Phelps for appellant.

I. The constitution, Sec. 25 Art. 6, requiring that circuit judges shall be elected by the qualified voters of each circuit, the act of May 19, 1877, acts of 1877, page 357 in

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so far as it authorizes the election of a special judge by the members of the bar is unconstitutional. Winchester v. Ayres, 4 Greene (Iowa) 104; Van Slyke v. Trempealeau Co. Farmers Mut. Fire Ins. Co., 39 Wisc. 390; Cohen v. Hoff, 3 Brevard (S. C.) 500. Section 29 of article 6 of the constition does not authorize the legislature to provide a different qualification or mode of electing circuit judges, and give it authority to change the manner or way of holding court by a constitutionally qualified and elected judge.

II. The State should have shown that the defendant was present at the time the deceased witness testified, all authorities agreeing that the accused must be present when the testimony is given. State v. McO'Blenis, 24 Mo. 402. The rule in civil cases that the testimony preserved in the bill of exceptions may be read on a subsequent trial has no application in a criminal case. Kean v. Commonwealth, 10 Bush (Ky.) 190. The witness had no right to refresh his memory by the bill of exceptions. 1 Greenleaf on Ev. 194. The objection that a proper foundation for the introduction of the bill of exceptions had not been laid was sufficient in a criminal case. State v. O'Connor,( infra p. 374). The court having permitted the bill of exceptions signed by bystanders to be filed, its truthfulness cannot be questioned. Norton v. Dorsey( infra p. 376).

J. L. Smith, Attorney General, for the State.

I. The first point relied on by appellant, is, that the act of May 19, 1877, is unconstitutional, and the solution of this question involves a construction of sections one and twenty-nine of article six of the Constitution of 1875. Section one provides that “the judicial power of the State as to matters of law and equity, except as in this constitution otherwise provided, shall be vested in a Supreme Court, &c., circuit courts, &c. Section twenty-nine provides that in certain cases, a judge of one circuit may call in the judge of another to hold a term or a part of a term of court for

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him, and “in all such cases, or in any case where the judge cannot preside, the General Assembly shall make such additional provision for holding court as may be found necessary.” We think that section one vests the judicial power of this state in the various courts therein named, and such other person or persons as are provided by the General Assembly by virtue of any other provision of the constitution, and that consequently any act passed by the General Assembly by virtue of such other provision, cannot be said to be in conflict with section one. Section twenty-nine confers upon the General Assembly power to provide such laws for holding court as it may find necessary, “in any case where the judge cannot preside.” The act of May 19, 1877, supra, in effect provides, that “when the judge of the court in which such case is pending, is near of kin to the defendant by blood or marriage, or when the offense charged is alleged to have been committed against the person or property of such judge, or some person near of kin to him, or when the judge is in anywise interested or prejudiced, or shall have been of counsel in the cause, or when the defendant shall make and file an affidavit, &c, that such judge will not afford him a fair trial,” a special judge to try said cause shall be elected as therein provided, and is in effect a legislative finding, that these are cases “where the judge cannot preside,” and that it was “necessary” to make this “additional provision for holding court.” Carpenter v. Montgomcry, 7 Blackf. 415; People v. Smith, 21 N. Y. 595.

II. The rule is well settled that “no court is authorized to declare an act of the Legislature void without being able to point out some specific clause in the constitution to which it is repugnant.” Hamilton v. St. Louis Co. Court, 15 Mo. 20; Stephens v. St. L. N. Bk., 43 Mo. 385; State ex rel., &c., v. C. G. & S. L. R. R., 48 Mo. 468; North Mo. R. R. v. Maguire, 49 Mo. 490; County Court, &c., v. Griswold, 58 Mo. 175; Sears v. Cottrell, 5 Mich. 251.

III. The identity of the testimony of the deceased witness, Holliday, was sufficiently established, and the

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evidence was admissible. The rules which govern civil cases as to receiving evidence of deceased witnesses, are also applicable to criminal cases. State v. Baker, 24 Mo. 437; State v. Houser, 26 Mo. 431; State v. Harman, 27 Mo. 120; Summons v. State, 5 Ohio St. 325; Greenwood v. State, 35 Texas 587; Davis v. State, 17 Ala. 354; Morris v. Hammerle, 40 Mo. 489; Rhine v. Robinson, 3 Casey 30; P. & R. R. R. v. Spearen, 47 Pa. St. 306; Brown v. Commonwealth, 73 Pa. St. 321; Van Buren v. Cockburn, 14 Barb. 118; Adair v. Adair, 39 Ga. 75; People v. Murphy, 45 Cal. 137; Marsh v. Jones, 21 Vt. 378; Downer v. Rowell, 24 Vt. 344; Whitcher v. Morey, 39 Vt. 459; 1 Whart. Crim. Law, p. 667. To establish a rule excluding evidence which comes before the court so fully verified as that offered in the present case, is to establish one “which the imperfection of our nature in the structure of the human memory will not warrant. It, in truth, excludes the thing which it proposes to admit, and at the same time opens a door for knaves to enter where honest men cannot approach.”

NORTON, J.

The defendant was indicted in the circuit court of McDonald county at the June term, 1874, thereof for murder in the first degree in killing one John L. Lane. The venue of the cause on application of the defendant was by order of said court, made at its October term, 1874, changed to Jasper county, in which county defendant was put upon his trial at the September term, 1877, of the circuit court of said county, which resulted in his conviction of the crime charged in the indictment.

Before the trial defendant presented an application for continuance, which was by the court overruled, to which exception was taken.

He also presented his petition and affidavit for a change of venue upon the ground that the judge was so prejudiced against him that he could not obtain a fair trial. This application was adjudged sufficient, and thereupon the judge

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made an order in pursuance of the act of 1877 for an election of a special judge to hear and try the cause. Sess. Acts 1877, p. 357. The election resulted in the choice of S. G. Williams, who presided in the cause, and conducted the trial of the same.

During the trial the court over the objection of defendant admitted the evidence of one William Holliday, given upon a former trial of this cause, as preserved in a bill of exceptions, to be read to the jury, the said Holliday in the meantime having died. The action of the court in overruling defendant's application for a continuance, in refusing to award a change of venue, and in ordering the election of a special judge to try the cause, and in admitting the evidence of the deceased Holliday, are the errors urged upon our attention by the counsel for defendant.

1. CONTINUANCE: Diligence.

The affidavit of defendant fails to disclose due diligence in procuring the attendance or the evidence of the witnesses, on whose absence he based his application for a continuance. He had no subpœna issued for one of them, and took no steps to take the deposition of the other, who resided in Vernon county. This cause has been pending since June, 1874, and in such cases the application for continuance should show the utmost degree of diligence before this court would be justified in interfering with the discretion of the trial court in overruling it. The affidavit not disclosing this degree of diligence, there was no error in refusing to grant the prayer of it, and requiring defendant to submit to a trial.

2. STATUTE: Unconstitutionality.

In support of the second ground of objection it is urged with much plausibility that the act of the legislature authorizing the election of a special judge to try causes where the presiding judge of the court is disqualified by reasons therein named, is unconstitutional. It may be observed, as preliminary to the consideration of the subject, that when we are asked to declare an act of the legislature unconstitutional, which has been passed with all the forms and ceremonies

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requisite to give it force, the question should be approached with great caution, and considered with the utmost care and deliberation. The nullity and invalidity of such a law must appear beyond a reasonable doubt before we can assume to pronounce it void. It has been held by this court “that no rule is better established than that acts of the Legislature are presumed to be constitutional until the contrary plainly appears, and it is only when they manifestly infringe on some provision of the constitution that they can be declared to be void for that reason. In cases of doubt every possible presumption, not directly and clearly inconsistent with the language and subject matter, is to be made in favor of the constitutionality of the act.” (43 Mo. 385; 48 Mo. 468.) The solution of such...