State v. Duestrow

• Decision Date: 11 February 1897
• Parties: The State v. Duestrow, Appellant
• Court: Missouri Supreme Court

39 S.W. 266

137 Mo. 44

The State v. Duestrow, Appellant

Supreme Court of Missouri, Second Division

February 11, 1897

137 Mo. 44 at 91.

Original Opinion of January 19, 1897, Reported at: 137 Mo. 44.

Motion to transfer to court in banc overruled.

Macfarlane J. Barclay, C. J., and Robinson, J., dissent.

OPINION

In Banc, February

11 1897. On motion to transfer to court in banc.

Macfarlane J.

The constitutional amendment discussed in the opinion is as follows:

"Section 1. The supreme court shall consist of seven judges, and, after the first Monday in January, 1891, shall be divided into two divisions as follows: One division to consist of four judges of the court, and to be known as division number one; the other to consist of the remaining judges, and to be known as division number two. The divisions shall sit separately for the hearing and disposition of causes and matters pertaining thereto, and shall have concurrent jurisdiction of all matters and causes in the supreme court, except that division number two shall have exclusive cognizance of all criminal cases pending in said court, provided that a cause therein may be transferred to the court as provided in section 4 of this amendment. The division of business, of which said divisions have concurrent jurisdiction, shall be made as the supreme court may determine. A majority of the judges of a division shall constitute a quorum thereof, and all orders, judgments and decrees of either division, as to causes and matters pending before it, shall have the force and effect of those of the court.

"Sec. 2. Upon the adoption of this amendment, the governor shall appoint two additional judges of the supreme court, who shall hold their offices until the first Monday in January, 1893, and at the general election in the year 1892 their successors shall be elected, who shall hold their offices for the term of ten years, as other judges of the supreme court. The two judges appointed by the governor, together with the judge elected at the general election in the year 1890, shall constitute division number two, and the remaining judges shall constitute division number one. The court shall elect its chief justice and each division a presiding judge thereof.

"Sec. 3. The supreme court shall assign to each division the causes and matters to be heard by it, of which assignment due public notice shall be given; and all laws relating to practice in the supreme court, as well as the rules of the supreme court, shall apply to each division so far as they may be applicable thereto. The opinion of each division shall be in writing, and shall be filed in the causes in which they shall be respectively made during the term at which the cause is submitted, and such opinions shall be a part of the records of the supreme court. Each division shall have authority to issue the original writs and exercise the powers enumerated in section three of article six of the constitution.

"Sec. 4. When the judges of a division are equally divided in opinion in a cause, or where a judge of a division dissents from the opinion therein, or where a federal question is involved, the cause, on the application of the losing party, shall be transferred to the court for its decision; or, where a division in which a cause is pending shall so order, the cause shall be transferred to the court for its decision.

"Sec. 5. Whenever, in the opinion of the supreme court, the state of its docket with reference to the speedy disposition of the business of the court will justify dispensing with the divisions hereinbefore provided, the court shall dispense therewith, and the court shall thereafter hear and determine all causes pending in it: Provided, however, that the court shall have the power to again divide itself into two divisions, in like manner and with like power and effect as hereinbefore provided, whenever, in the opinion of six judges thereof, entered of record, the condition of its docket with reference to the speedy disposition of the business of the court shall so require, and in such division the four judges oldest in commission shall constitute division number one, and the remaining judges division number two.

"Sec. 6. All provisions of the constitution of the state and all laws thereof not consistent with this amendment shall, upon its adoption, be forever rescinded and of no effect."

Defendant was convicted by the circuit court of Franklin county of murder in the first degree, and from the sentence he appealed to the supreme court. The appeal was heard by division two of the court, and the judgment of the circuit court was affirmed. After an unsuccessful motion for a rehearing, a motion was filed in said division to transfer the cause to the court in banc for a rehearing, on the ground that a federal question was involved. This motion said division also overruled, holding that no federal question was involved. Defendant now makes application to the court, sitting in banc, to order said cause transferred for a rehearing therein for the same reason urged in the division; namely, that the proceedings involve a federal question.

The only question directly presented for our consideration on this motion, is, whether the court, sitting in banc, has power, under the amendment to the constitution adopted in 1890, to review the action of a division of the court and determine whether a federal question is involved and to order a transfer of a case to the court in banc after such division has unanimously decided that there is no federal question in the case.

By section 1 the court is divided into two divisions. Division two, consisting of three judges, is given exclusive cognizance of all criminal cases. Division one has only civil jurisdiction. Each division has concurrent jurisdiction in civil cases. The divisions are required to sit separately for hearing and disposition of causes and matters pertaining thereto. Section 3 provides that all laws relating to practice in the supreme court, as well as the rules of the supreme court, shall apply to each division so far as they may be applicable thereto, and requires the opinions of the divisions to be in writing and filed in the causes in which they shall be respectively made.

Division number two is thus given exclusive and independent jurisdiction of all criminal cases. Its jurisdiction is as independent of the court as it is of division one. It is the court of last resort in all criminal cases. No superintending control is reserved over it, nor does an appeal or writ of error lie from it to the court.

But section 4 does provide for transferring causes from a division to the court in certain cases. That section reads as follows:

"Sec. 4. When the judges of a division are equally divided in opinion in a cause, or where a judge of a division dissents from the opinion therein, or where a federal question is involved, the cause, on the application of the losing party, shall be transferred to the court for its decision; or, where a division in which a cause is pending shall so order, the cause shall be transferred to the court for its decision."

Does this section give to the court in banc the power claimed by defendant under his motion? We are of the opinion that it does not.

It can not be said that this section gives to the supreme court superintending control over a division. By the original constitution the supreme court has superintending control over inferior courts only. But a division can not be said to be inferior to the court. The judgment of a division has the same force and effect as the judgment of the court. Neither the subject-matter of the suit, the amount in dispute, nor the question involved, distinguishes the jurisdiction of the court from that of a division. The court, and the divisions, therefore, have concurrent jurisdiction in civil matters and division two has exclusive jurisdiction in criminal cases. The divisions are not, therefore, inferior courts within the meaning of article 4, section 3, of the constitution which gives the supreme court superintending control over inferior courts.

Nor is such power of control inherent in the court. The highest courts of this country do not represent the sovereignty as formerly did the court of King's bench in England, in which the inherent power to control all inferior courts resided. In this country the superintending power of one court over another, if it exists at all, does so by virtue of constitutional or statutory authority. The power of supervision resides in the supreme court of Missouri only by virtue of the sovereign authority of the people expressed in their constitution. High, Extra. Leg. Rem., ch. 12.

No power is given the court to control, in any respect, the disposition of criminal causes or matters pertaining to them, but all laws relating to practice in the supreme court, as well as the rules of the supreme court, as far as they may be applicable thereto, shall apply to their disposition.

Motions filed subsequent to a judgment in a cause are matters pertaining thereto and must be filed in the division which rendered the judgment. If the determination of such a motion requires the finding of a fact or the settlement of a legal question, such division must hear and decide it. They are given the same power to decide matters of that kind as to decide the case itself, and their judgments on such matters are as conclusive. A writ of error, or a motion in the court in banc intended to subserve the same purpose, no more lies from a judgment on a motion, than from the judgment on the merits. In each case the judgment of a division is the judgment of a court of last resort, and ends the matter decided.

The existence or non-existence of a federal question in a...