State v. Galloway

• Decision Date: 26 October 1929
• Docket Number: No. 4746.,4746.
• Parties: STATE ex rel. HARRIS v. GALLOWAY, Justice of the Peace.
• Court: Missouri Court of Appeals

21 S.W.2d 228

STATE ex rel. HARRIS v. GALLOWAY, Justice of the Peace.

No. 4746.

Springfield Court of Appeals. Missouri.

October 26, 1929.

Original proceeding by the State, on the relation of Max Harris, relator, for writ of prohibition to be directed to J. W. Galloway, Justice of the Peace in Sparta Township, to prohibit respondent from further proceeding in a preliminary hearing against relator on a charge of statutory rape. Preliminary writ made permanent.

Omer E. Brown, of Ozark, for relator.

G. Massey, of Ozark, and Stewart & Banta, of Ava, for respondent.

SMITH, J.

This is an original proceeding in this court asking that we prohibit J. W. Galloway, justice of the peace in Sparta township, Christian county, from further proceeding in a preliminary hearing against the relator, Max Harris.

The facts as we gather them from the petition are as follows: The relator, Max Harris, was arrested and arraigned before M. R. Logan, a justice of the peace of Finley township, in Christian county, on a charge of statutory rape, and a preliminary hearing upon said charge was to be had before said M. R. Logan on July 24, 1929. In Finley township there are two justices of the peace, the said M. R. Logan and one R. B. Farrar. On July 24, the date set for the preliminary hearing, the relator filed with M. R. Logan an affidavit for change of venue, alleging that M. R. Logan was biased and prejudiced against the defendant, so that the defendant could not have a fair and impartial trial and preliminary hearing before said justice of the peace, and prayed that a change of venue be granted him, and that the cause be sent to some other justice of the peace in said township. The petition further alleged that the said M. R. Logan refused to send the cause to R. B. Farrar, the next nearest justice of the peace in Finley township, but sent the same to J. W. Galloway, a justice of the peace of Sparta township, in Christian county, which township does not join Finley township, and the relator was compelled to enter into a bond for his appearance before J. W. Galloway, and said petition contains this paragraph:

"Plaintiff further states that the said State of Missouri the plaintiff in said cause of action did on the 24 day of July 1929 have subpœnaed said R. B. Farrar, as a witness for the State in said cause, and that said subpœna was not gotten out in good faith, and that said Justice of the Peace had no knowledge of said cause of action, and that the said action of the Attorneys for the State of Missouri, in so having the said R. B. Farrar supœnaed as a witness for the state on said day and date was for the purpose of attempting to disqualify him from hearing said cause then pending, before the said M. R. Logan. That the said R. B. Farrar is fully qualified in every way to hear said cause and is not of kin or counsel for any one of said parties defendant or witnesses in said cause, and is capable of rendering a fair and impartial find to both the State and the defendant, in said cause."

The petition further alleged that the said M. R. Logan, justice of the peace of Finley township, had forwarded to the respondent, J. W. Galloway, of Sparta township, the...