State v. Bulling

• Citation: 15 S.W. 367,105 Mo. 204
• Court: United States State Supreme Court of Missouri
• Decision Date: 27 January 1891
• Parties: STATE v. BULLING.

15 S.W. 367

105 Mo. 204

STATE v. BULLING.

Supreme Court of Missouri, Division No. 2.

January 27, 1891.

ELECTION OF SPECIAL JUDGE — DISCHARGE — FAILURE TO TRY ACCUSED — MURDER—APPEAL—EXCEPTIONS.

1. The accused applied for a change of venue for the prejudice of the inhabitants of the county, and filed an affidavit, supported by two witnesses, that the judge was prejudiced. The court ordered the election of a special judge to decide the application for a change of venue. The special judge denied the application, and tried the case. The judgment was reversed, because the order should have been for the election of a special judge to hear the application and to try the case. Held that, on the return of the case to the trial court, the regular judge had authority to make a proper order for the election of a special judge.

2. Though three terms of the trial court intervene pending an appeal from a trial and sentence which were coram non judice and void, the accused is not entitled to be discharged, under Rev. St. Mo. 1889, §§ 4222, 4225, providing that if any person indicted and committed to prison shall not be brought to trial before the end of the third term he shall be entitled to be discharged.

3. The wife of the accused had left him, and was working at an hotel. The day before the homicide he asked her to return for the sake of their child, and she refused. He then asked her to promise to lead a virtuous life, and she refused to make the promise, shutting the door in his face. The next day the accused was told that she had been at a disreputable ball the night before, dressed in an immodest maner. The accused walked several blocks to the hotel, went to the dining-room, where he met his wife in a friendly manner, and asked for his watch and checks, which were in her trunk. She went with him, and they entered her room. In a short time he shot her in the back of the head. She was found lying on the floor, with her feet to the trunk, which was open. The accused testified that he did not intend to kill or injure her, and did not remember shooting her. Held, that the accused was not entitled to a charge on murder in the second degree, nor on manslaughter in the third degree, and that he could not have been prejudiced by a charge that, if he shot and killed his wife because he was jealous or because he believed her to be untrue, or because she refused to live with him, the jury should convict of murder in the first degree, as defined in a separate instruction, or acquit on the ground of insanity.

4. If the accused wishes to reserve for review an interruption of his attorney's argument by the court, he should have the judge insert in the bill of exceptions what the argument was, and what the court said in interrupting it, and the exceptions taken, and it is not sufficient to recite the facts in a motion for a new trial.

Appeal from circuit court, Andrew county; C. A. ANTHONY, Judge.

Wm. B. Sanborn and David Rea, for appellant. The Attorney General, for the State.

THOMAS, J.

The defendant was indicted in the criminal court of Buchanan county at its March term, 1888, for the murder of his wife, Flora Bulling. At the same term he filed an application for a change of venue from the county on account of the prejudice of the inhabitants thereof, and also an affidavit, supported by two witnesses, that the judge was so prejudiced against him that he would not impartially decide his application for a change of venue. The court immediately made an order that a special judge be elected to decide defendant's application for a change of venue. F. S. WINN was elected special judge, and he overruled the application for a change of venue, and then proceeded to try the case upon its merits, which resulted in the conviction of defendant for murder of the first degree, and his sentence to death. The trial occurred in April, 1888. These proceedings were had prior to the enactment of the present statute in regard to change of venue on account of prejudice of the people. Then the judge heard the evidence, and determined the issue of prejudice or no prejudice. In 1889 the statute was so amended that the judge has now no discretion in the matter, if the defendant will make affidavit, supported by two credible witnesses of the county, that the people are prejudiced against him to the extent that he cannot have a fair and impartial trial. He took his appeal to this court from the sentence against him in 1888, and the case was reversed and remanded upon the ground that Judge WINN had not been legally elected special judge; indeed, that his election and qualification were so irregular that he was not authorized to try the case, and what he did was coram non judice, and therefore void. State v. Bulling, 100 Mo. 87, 12 S. W. Rep. 356. When the case got back to the criminal court of Buchanan county, defendant, on the 3d day of December, 1889, filed written objections to the regular judge of said criminal court, Hon. SILAS WOODSON, entering any order or exercising any judicial power in the case, because he had made one order for the election of a special judge, and when that order was entered his functions, as regular judge in that case, ceased; but Judge WOODSON made another order for the election of a special judge to decide the application for a change of venue, and to try the case, and Hon. JOSEPH P. GRUBB was duly elected, took the oath required by law, and granted a change of venue in the case to Andrew county, — the defendant having complied with the statute on the subject of change of venue, as amended in 1889. To this action of the court defendant duly excepted. Hon. CYRUS A. ANTHONY was the regular judge of the circuit court of Andrew county, and there was no objection made against him on the score of prejudice, but defendant filed his motion in the Andrew circuit court under section 4222, Rev. St. 1889, asking for his discharge because five terms of the said criminal court had been held since his indictment, and he had not been brought to trial, and that the delay had not happened on the application of the defendant for a continuance, or been occasioned for want of time to try the case. This motion was overruled, and defendant excepted. A trial was had in May, 1890, in the circuit court of Andrew county, and resulted again in the conviction of defendant of murder of the first degree and his sentence to death, and the case is here by appeal for the second time, and his counsel argue with much earnestness and ability that the case ought to be reversed, and the defendant discharged, (1) because the order made by Judge WOODSON in December, 1889, for the election of a special judge, was utterly void; and (2) because five terms of the Buchanan criminal court elapsed before his being brought to trial, without any fault of his.

1. As to the first point, we hold that Judge WOODSON had jurisdiction to make and enter the order he did. This court held, when the case was here on the first appeal, that the court below had no authority to order the election of a special judge "to decide defendant's application for a change of venue" only, and, this having been done, the order was void, and conferred no jurisdiction on the special judge elected thereunder to either decide his application for a change of venue or to try the case, and when the case reached the said criminal court the judge proceeded to do what this court decided he ought to have done in March, 1888; that is, make an order for the election of a special judge to decide the application for a change of venue and to try the case. If defendant's contention be tenable, the status of this case would be most remarkable. Indeed, it would be in limbo. Special Judge WINN had no authority to do anything in the case, as was specially decided by this court; and, if Judge WOODSON had no jurisdiction to do anything in it, we would have the remarkable spectable presented of a court having, by its errors, environed itself and tied its hands so that it could move neither up nor down, go forward nor retreat. It would have to stand still, and leave a case on its docket undisposed of, and having no power to either try it, have some one else try it, or even strike it from the docket. It is scarcely conceivable that any such absurd result could arise under our system of laws. To avoid this reductio ad absurdum, the defendant's counsel argues that the clerk of said criminal court might have power to proceed and elect a special judge. They do not even concede this, but suggest it as a possible escape from the awkward dilemma in which the case would be placed if it be untried and untriable. Counsel rely on the opinion in the case of Lacy v. Barrett, 75 Mo. 469, as sustaining their view that Judge WOODSON had no jurisdiction in December, 1889, to make the order for the election of a special judge, and as giving color to the suggestion that the clerk might act. We do not concur with counsel that the Barrett Case teaches any such doctrine. In that case the judge made an order for the election of a special judge in proper form, and when James G. Blair was elected special judge the regular judge decided Blair was incompetent to sit in the case, because he had been an attorney in it, declared the election void, and directed another election to be held. On this state of facts, Judge HENRY, speaking for the court, said: "If Mr. Blair had been of counsel in the cause, and either party had, for that reason, been unwilling that he should preside at the trial, the objection should have been made to the clerk, whose duty it was to hold the election, and under section four another election could have been held, and so on, from time to time, until a suitable person was chosen who could and would have presided. * * * It was for them, [the attorneys,] and not the judge, to raise the question." There the regular judge made the proper order for the election, and then his duties and jurisdiction ceased; but he interfered...