State v. Downs

• Decision Date: 12 November 1901
• Citation: 65 S.W. 258,164 Mo. 471
• Parties: STATE v. DOWNS.
• Court: Missouri Supreme Court

65 S.W. 258

164 Mo. 471

STATE v. DOWNS.

Supreme Court of Missouri, Division No. 2.

November 12, 1901.

COURTS — JUDGES — DISABILITY OF JUDGE — SPECIAL JUDGE — SELECTION — STATUTES — ATTORNEY AND CLIENT — STIPULATION BY ATTORNEY.

1. Rev. St. 1899, § 1679, provides that whenever a circuit judge shall be unable to hold court, and the parties to a cause fail to agree to select an attorney of the court to preside, the attorneys present may elect one of their number to hold court. Section 1683 provides that the parties to an action may agree on an attorney to preside. Section 2594 enumerates cases in which a judge shall not be competent to sit on the trial of a criminal prosecution, and section 2595 enacts that when, in a criminal case, the judge is incompetent for any reason specified in section 2594, the defendant and the prosecuting attorney may elect an attorney to preside. Held, that the provisions of section 2595 apply only to the events mentioned in section 2594, and do not indicate that section 1679 and section 1683 apply only to civil cases; and where the judge, owing to illness, was not able to try a criminal case, it was proper to select an attorney, under sections 1679 and 1683.

2. If the concurrence of the regular judge were necessary to a selection of a special judge, under the statutes, an order showing the selection, owing to illness of the regular judge, entered while the regular judge was on the bench, and in the presence of the parties, was sufficient.

3. It was competent for counsel for accused to agree on the special judge on behalf of his client.

Appeal from circuit court, St. Francois county; D. L. Rivers, Special Judge.

Arch Downs was convicted of robbery, and he appeals. Affirmed.

The defendant was indicted for robbery in the circuit court of St. Francois county. Being a poor person, the court appointed counsel to conduct his defense. An application for continuance was filed, and the cause set for December 10, 1900. The record in the case then shows that on the 30th day of November, 1900, the following order was made of record: "State of Missouri, Plaintiff, vs. Arch Downs, Defendant. Indictment for Robbery, First Degree. The regular judge of this court, James D. Fox, having received physical injuries, is hereby unable to preside and try this cause, and by reason of such injuries will necessarily be absent, at his home, in an adjoining county, during its trial, whereupon W. L. Hensley, prosecuting attorney of St. Francois county, appearing for the state, and R. C. Tucker and Merrifield W. Huff, appearing as counsel for defendant, in open court agree upon D. L. Rivers, Esq., one of the attorneys of this court, possessing all the qualifications of a circuit judge, to preside and hold the court for the trial of this cause, and herewith file their agreement of the selection of said D. L. Rivers as special judge, as provided by sections 1679, 1683, Rev. St. 1899, which agreement is as follows: `State of Missouri, Plaintiff, vs. Archibald Downs, Defendant. In the Circuit Court of St. Francois County, Mo. Now at this day comes the state of Missouri, by the prosecuting attorney of St. Francois county, and also comes the defendant, by his attorneys, and the said plaintiff and defendant hereby agree that whereas, the judge of this 27th circuit cannot be present on the day on which this cause is set for trial, therefore Hon. D. L. Rivers may sit as special judge to try the said cause. Archibald Downs, Defendant, by R. C. Tucker, Merrifield W. Huff, His Attorneys. W. L. Hensley, Prosecuting Attorney.'" On the 10th day of December, 1900, the record proper recites the filing of a plea to the jurisdiction of the court, which was overruled; but the plea itself does not appear in the transcript, and we know nothing of its contents. The cause proceeded to trial before the special judge, and defendant was convicted and sentenced to the penitentiary for five years. In due time he filed his motions for a new trial and in arrest, which were overruled.

M. W. Huff and R. C. Tucker, for appellant. E. C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

GANTT, J. (after stating the facts).

1. On this appeal no stress is laid upon any alleged error, save that Mr. Rivers, a member of the bar, was selected as special judge without the authority of law, and that he had no jurisdiction to try the case. So far as this record discloses, no objection was made to the mode adopted for selecting a special judge to serve on account of the disability of Judge Fox until the motions for new trial and in arrest were filed. Conceding that these motions were timely, was the selection of the special judge without authority of law, and all his acts void? The constitution of this state (section 29, art. 6) provides: "If there be a vacancy in the office of judge of any circuit, or if the judge be sick, absent, or from any cause unable to hold any term or part of a term of court in any county in his circuit, such term or part of a term of court may be held by a judge of any other circuit; and at the request of the judge of any circuit, any term of court or part of term in his circuit may be held by the judge of any other circuit, and in all such cases, or in any case where the judge can not preside, the general assembly shall make such additional provision for holding court as may be found necessary." By section 1679, Rev. St. 1899, under the title "Courts of Record," "Circuit Courts," the general assembly, in obedience to this mandate, has provided that "whenever the judge, from any cause, shall be unable to hold any term or part of term of court, and shall fail to procure another judge to hold said term or part of term, or if the judge is interested or related to, or shall have been counsel for either party, or when the judge, if in attendance, for any reason, cannot properly preside in any cause or causes pending in such court, and the parties to such cause or causes, fail to agree to select one of the attorneys of the court to preside and hold court for the trial of cause or causes, the attorneys of the court who are present, but not less in number than five, may elect one of its members then in attendance having the qualification of a circuit judge, to hold the court for the occasion." And by section 1683 of the same chapter it is further provided, "The parties to an action may agree upon one of the attorneys of the court to preside and to hold the court for the trial of such action, who shall possess the qualifications of a circuit judge, and while so presiding shall have all the...