State v. Gilham

• Decision Date: 16 December 1902
• Citation: 70 S.W. 943,97 Mo.App. 296
• Parties: STATE OF MISSOURI, Respondent, v. WILLIAM E. GILHAM, Appellant
• Court: Missouri Court of Appeals

70 S.W. 943

97 Mo.App. 296

STATE OF MISSOURI, Respondent, v. WILLIAM E. GILHAM, Appellant

Court of Appeals of Missouri, St. Louis

December 16, 1902

Appeal from St. Louis Court of Criminal Correction.--Hon. John W McElhinney, Special Judge.

AFFIRMED AND TRANSFERRED TO SUPREME COURT.

Affirmed and transferred to supreme court.

Thomas J. Rowe and Paxton & Clark for appellant.

Judge McElhinney had no jurisdiction to try this cause, and any judgment entered under his supervision has no more validity than one rendered in a moot court of any law school. Section 2597, R. S. 1899; State v. Shipman, 93 Mo. 157; State v. Bulling, 105 Mo. 204.

H. A Clover, Dodge & Mulvihill and Thos. B. Harvey for respondent.

The only proposition seriously contended for by appellant in his brief is that Judge McElhinney was not invested with jurisdiction to try the cause; and appellant cites nine Missouri cases, not a single one of which is in point or sustains his contention. (2) Was Judge McElhinney clothed with jurisdiction? The steps by which such jurisdiction was conferred were as follows: The incumbent judge, the Hon Willis H. Clark, voluntarily entered an order disqualifying himself, and notified and requested the Hon. E. M. Hughes to try the case; and upon Judge Hughes' failing to appear to try the case, Judge Clark then notified and requested Hon. J. T. Neville to appear and try the case, who did appear and assume jurisdiction over the cause and upon defendant filing a plea in abatement, denied the same, ordered a jury, etc.; and thereupon the defendant filed affidavit under section 2594, Revised Statutes 1899, disqualifying Judge Neville, and thereupon Judge Neville made an order notifying and requesting the Hon. J. W. McElhinney to appear and try the cause, who did appear at the time requested, assumed jurisdiction and tried the cause with a jury. (3) We insist that Judge McElhinney was fully vested with jurisdiction. There can be no question about the propriety of Judge Clark's order disqualifying himself under section 2595, Revised Statutes 1899; and the order need not state the reason nor ground of such disqualification. State v. Newsum, 129 Mo. 159; State ex rel. v. Wear, 129 Mo. 624.

GOODE, J. Barclay, J., concurs; Bland, P. J., dissents.

OPINION

GOODE, J.

--On December 5, 1900, an information was filed against the appellant in the St. Louis Court of Criminal Correction charging him with a criminal offense. Subsequently an amended information was filed. On the said fifth day of December, the date of the filing of the first information, Honorable Willis H. Clark, the regular judge of said court, voluntarily disqualifying himself to try the cause against the appellant and called in Judge E. M. Hughes of the Eleventh judicial circuit to try it. As Judge Hughes failed and refused to sit, Judge Clark called in Judge Neville of the Twenty-third judicial circuit, the appellant objecting and excepting to that order.

Afterwards on February 28, 1901, affidavits were filed by the appellant disqualifying Judge Neville; whereupon on the same day that judge made an order calling in Hon. J. W. McElhinney of the Thirteenth judicial circuit to sit in the case, to which order the appellant at the time objected and excepted.

The cause was tried before Judge McElhinney, the defendant found guilty and his punishment assessed at $ 200, from which judgment he appealed.

The authority of Judge Clark to call in Judge Neville after the first-named judge had disqualified himself, and also of Judge Neville after he was disqualified by affidavits filed by the appellant, to make an order calling in Judge McElhinney, are both questioned, as is the jurisdiction and authority of Judge McElhinney to proceed in the case. The decision of these questions turns on the construction of the statutes relating to changes of venue generally, and those relating especially to changes of venue in criminal cases.

Unquestionably the regular judge of the court had a perfect right to decline to preside at the trial if he was conscious of the existence of any cause which disqualified him, and it was his duty in that event to decline to preside. R. S. 1899, sec. 2595.

He likewise had the power to call in the judge of some other circuit, and we think the proper construction to be given to the statute now in force is, that he could do this without previous proceedings in the way of electing or agreeing on a judge.

Section 2597 (R. S. 1899), so far as it is pertinent to the matter in hand, reads as follows:

"If, in any case, the judge shall be incompetent to sit for any of the causes mentioned in section 2594, and no person to try the case will serve when elected as such special judge, the judge of said court shall, in either case, set the cause down for trial on some day of the term, or on some day as early as practicable in vacation, and notify and request the judge of some other circuit to try the cause; and it shall be the duty of the judge so requested to appear and hold the court at the time appointed for the trial of said cause; and he shall, during the trial of said cause, possess all the powers and perform all the duties of a circuit judge at a regular term of such court, and may adjourn the case from day to day, or to some other time, as the exigencies of the case may require, and may grant a change of venue in said cause to the circuit court of another county in the same circuit, or to another circuit; and whenever said cause shall be removed to the circuit court of another county in the same circuit, it shall be the duty of the judge so requested to appear and hold the court at the time set for the trial of said cause in the circuit court of the county to which said cause shall be removed; provided, that if the person elected as such special judge shall refuse to serve, or if the judge so requested shall fail to appear and hold the court at the time appointed for the trial of said cause, the judge of said court shall reset said cause for trial, to suit the convenience of the judge so requested to try said cause, or may notify and request the judge of some other circuit to appear and try said cause, as heretofore provided. Should said judge so requested fail to appear and hold the court at the time appointed for the trial of said cause, the judge of the court shall order a change of venue in said cause to some other circuit. Said order may be made in term time, or by the judge of the court in vacation, by an order in writing, which the judge shall file with the clerk of the court in which such cause is pending."

Appellant contends that by virtue of that statute a special judge must have been elected and have refused to act before the regular judge had authority to call in the judge of another circuit. That was the construction given to the statutes bearing on changes of venue generally and those regulating it in civil cases (which, as to the point involved, seems not to have differed materially from the statutes regulating that proceeding in criminal cases) as they stood prior to their amendment in 1895. State ex rel. v. Bacon, 107 Mo 627, 18 S.W. 19. But, as the law then stood, an election by the members of the bar was provided for in case the regular judge was disqualified; and the judge of another circuit could not be called...