State v. Allison

• Decision Date: 12 April 1971
• Docket Number: No. 2,No. 55424,55424,2
• Parties: STATE of Missouri, Respondent, v. Leroy James ALLISON, Appellant
• Court: Missouri Supreme Court

Page 712

466 S.W.2d 712

STATE of Missouri, Respondent, v. Leroy James ALLISON, Appellant.

No. 55424.

Supreme Court of Missouri, Division No. 2.

April 12, 1971.

Motion for Rehearing or to Transfer to Court En Banc Denied

May 10, 1971.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

David M. Grant, St. Louis, for appellant.

MORGAN, Judge.

Defendant, with four prior convictions for drug related offenses, waived a jury and was tried to the court for possession of 80.48 grams of Cannabis Sativa, commonly called marijuana. Sections 195.020 and 195.200, V.A.M.S. The penalty was assessed at twelve years confinement.

He does not challenge the sufficiency of the evidence to sustain the conviction and the evidence may be outlined in summary form. On January 14, 1969, several police officers went to the premises occupied by defendant at 4928 Lotus Avenue in St Louis. They had in their possession a warrant authorizing search of the premises for marijuana. In this case we are not interested in the forty thousand dollars of allegedly stolen property found, but only the marijuana which provided the basis for the present charge.

First, defendant attacks the validity of the search warrant which was issued from the St. Louis Court of Criminal Correction on the day of the search. It was signed by one J. S. Gollub, acting as provisional judge, under the following appointment:

'It appearing to the satisfaction of the court in vacation on the application of the Clerk of the St. Louis Court of Criminal Correction that the Honorable David Fitzgibbon, Judge of the St. Louis Court of Criminal Correction, Division No. 2, will be absent from the City of St. Louis, and thereby unable to discharge the duties of this office. It is therefore ordered that J. S. Gollub be, and is hereby appointed provisional judge pursuant to Section 479.070, RSMo 1949, to act as such provisional judge from January 6, 1969, to January 26, 1969, inclusive.'

The statutory authority for such an appointment is found in Section 479.070, which provides, in part:

'1. In the event of the sickness or absence of the judge of either division of the court, if for any reason the judge of the other division of the court cannot sit, the circuit court of St. Louis city, or any judge thereof, in vacation, may appoint, for the time being, a provisional judge of said division, who shall possess the qualifications of a judge of the circuit court; and who, in the absence, sickness or other incapacity of the regular judge, shall have all the power and perform all the the duties conferred and imposed by law upon the regular judge.'

As indicated by the order of appointment, the court has two divisions. Section 479.010. The order made no reference as to the availability of the regular judge of Division No. 1 to serve in No. 2. Defendant contends that an appointment of a provisional judge for either division, when the regular judge is absent, can only be made 'if for any reason the judge of the other division of the court cannot sit.' Obviously, this argument is valid for the simple reason the statute specifically predicates the authority to appoint a provisional judge for one division upon the unavailability 'for any reason' of the regular judge of the other division. Defendant relies generally on the text authority found in 48 C.J.S. Judges § 101, p. 1113, which concludes: 'A special or substitute judge must be selected in accordance with constitutional and statutory regulations. * * * In order to constitute a special or substitute judge under the law, his selection must comply with the provisions of the law.' Such is the law of this state, for, as said in State ex rel. Allen v. Trimble, 317 Mo. 751, 297 S.W. 378, 380: 'It is axiomatic that judicial power can only be conferred upon a court or a person by the authority of the law.' However, in this case we are not concerned with the lack of any authority to make the appointment, for such power is conferred by Section 479.070, but the sufficiency of the order making such appointment. Before considering that question, we do recognize the authorities cited by defendant, which are: Ex Parte O'Brien, 127 Mo. 477, 30 S.W. 158; State v. Anderson, 191 Mo. 134, 90 S.W. 95 and State ex rel. Kaiser v. Miller,316 Mo. 372, 289 S.W. 898. Each involved matters in the Court of Criminal Correction, and in each the reviewing court emphasized that, 'It is clear that the power and jurisdiction of this court is limited and no presumptions or intendments are indulged in favor of its jurisdiction.' The fact such cases are not applicable to the instant case is readily apparent, because the order of appointment in question was that of the circuit court and not that of the court of criminal correction. Thus, any challenge to the propriety of the order made must be considered as would any other by a court of general jurisdiction. As a general principle, every presumption will be indulged in support of the court's proceedings. State v. Hunter, 171 Mo. 435, 71 S.W. 675, 676; State v. Newsum, 129 Mo. 154, 31 S.W. 605, 606. In connection with the selection of a special judge, this court said in State v. Huett, 340 Mo. 934, 104 S.W.2d 252, 258, '* * * no reasons being shown by the record, it will be presumed that statutory reasons existed.' Further, in this case we need not make any presumption for the record reflects the presence of all statutory conditions for the appointment of a provisional judge. Testimony was offered that at the time the search warrant was issued the regular judge of the other division was also absent, and that a provisional judge was acting in both divisions. Defendant made no effort to refute such testimony, and the record establishes the presence of all statutory precedents for the appointment of Judge Gollub. The right to challenge his authority can not be questioned, State ex rel. McGaughey v. Grayston, 349 Mo. 700, 163 S.W.2d 335, 337; but from the record made, the challenge must be denied.

Further, in connection with the validity of the search warrant, defendant contends that there were not sufficent evidential facts presented for the judge to determine the question of probable cause for its issuance, and the seizure of 'marijuana' is not authorized by statute. On the first point we need not, again, review the multitude of cases, both federal and state, on the question. It is sufficient to resolve whether or not the judge had before him such facts that he could...