State v. Bulling

• Decision Date: 18 November 1889
• Citation: 100 Mo. 87,12 S.W. 356
• Parties: STATE v. BULLING.
• Court: Missouri Supreme Court

12 S.W. 356

100 Mo. 87

STATE v. BULLING.

Supreme Court of Missouri.

November 18, 1889.

CRIMINAL LAW — SPECIAL JUDGE.

Rev. St. Mo. 1879, § 1878, provides that whenever defendant shall make application, supported by the affidavits of two or more reputable persons not of kin or counsel for defendant, for a change of venue for any of the reasons specified by statute, it shall be lawful for the court to order the election of a special judge "for the trial of the particular cause pending or to decide defendant's application for a change of venue." Section 1879 provides that the special judge shall take an oath "to hear and try the particular cause or motion pending without fear, favor, or partiality." Held, that as a defendant is entitled to only one application, based upon the disqualification of the judge, the word "or" will be construed to mean "and," and the election of a special judge merely "to decide the defendant's application for a change of venue" is unauthorized, and confers no jurisdiction, and any consent of defendant to the trial of a cause upon its merits by such special judge is of no avail. BARCLAY, J., dissents.

Appeal from criminal court, Buchanan county; FERMAN S. WINN, Special Judge.

Indictment against Louis Bulling for murder. Rev. St. Mo. 1879, § 1878, provides that "whenever, in any cause, the defendant shall make application by petition, under the oath and supported by the affidavit of two or more reputable persons not of kin or counsel for the defendant, for a change of venue for any of the reasons stated in the next preceding section, it shall be lawful for the judge" to order "the election of a special judge for the trial of a particular cause pending or to decide defendant's application for a change of venue," etc. Id. § 1879, provides that "the special judge * * * shall, immediately after his election, take an oath to support the constitution of the United States and of the state of Missouri, and to hear and try the particular cause or motion pending, without fear, favor, or partiality." Verdict of guilty, and defendant appeals.

William B. Sanford, for appellant. John M. Wood, Atty. Gen., for the State.

SHERWOOD, J.

The defendant, indicted for the crime of murder, filed an application under the provisions of sections 1856, 1859, Rev. St. 1879, based upon the prejudice of the minds of the inhabitants of the county. He also filed at the same time an additional affidavit, under the provisions of section 1877, properly supported by other affidavits, alleging that the judge of the criminal court would not impartially decide his application for a change of venue on account of the prejudice of the inhabitants of the county. Whereupon, under an order of the court, duly entered, Ferman S. Winn was elected as special judge "to decide the defendant's application for a change of venue." The special judge thereupon took and subscribed an oath that he would support the constitution, etc., and that he would "fairly and impartially decide defendant's application for a change of venue here." These things happened on March 17, 1888, and so the oath of the special judge is dated. Afterwards the special judge denied the application for a change of venue from the county, and after taking what the record terms "a supplemental oath as special judge," which said supplemental oath, among other things, recited that said affiant would "hear and try the above cause without fear, favor, or partiality, and give the defendant a fair and impartial trial, and faithfully demean himself in office." These things occurred on the 24th of May, 1888, and such is the date of said supplemental oath. The trial of the cause then took place, resulting in the conviction of the defendant of murder in the first degree. He was sentenced accordingly, and appeals to this court.

1. When a defendant in a criminal cause files an application for a change of venue, based upon the prejudice of the inhabitants of the county, and no other or further affidavit is presented, the judge of the trial court hears the application himself, and, if proved to his satisfaction, he orders the cause removed to another county in the same circuit where such prejudice does not exist; but if the circuit judge denies the application for a change of venue, then he proceeds with the trial of the cause just as if no such application had been made. State v. Whitton, 68 Mo. 91. And...