State v. Higgerson

• Decision Date: 31 May 1892
• Parties: The State v. Higgerson, Appellant
• Court: Missouri Supreme Court

19 S.W. 624

110 Mo. 213

The State v. Higgerson, Appellant

Supreme Court of Missouri, Second Division

May 31, 1892

Appeal from Moniteau Circuit Court. -- Hon. James E. Hazell, Judge.

Reversed and remanded.

John Cosgrove and James H. Johnston for appellant.

(1) The regular judge of the Cooper circuit court alone had jurisdiction to pass upon defendant's application for a change of venue. State v. Anderson, 96 Mo. 245. (2) The state is not entitled to a change of venue which it, in effect, took from special Judge Hutchinson to special Judge Hazell. There could be but one change. State v Anderson, 248. (3) The application was not in proper form. R. S., sec. 4174. (4) The special election held by the clerk was error. State v. Bulling, 100 Mo. 87, and cases cited.

John M Wood, Attorney General, for the State.

(1) The election of Special Judge Hutchinson was proper. State v Bulling, 100 Mo. 87. (2) The election of Hon. James E. Hazell as special judge was proper and regular. R. S., sec. 4174; State v. Shipman, 93 Mo. 147; State v. Hayes, 81 Mo. 574; Ex parte Clay, 98 Mo. 578. (3) The objection to the introduction of any evidence under the indictment upon the ground that James E. Hazell, the special judge, had no jurisdiction to try the case, and that the court was not properly held and had no jurisdiction, was out of time, and properly overruled. State v. Risley, 72 Mo. 609; State v. Meyers, 99 Mo. 107.

OPINION

Thomas, J.

The defendant was indicted in the circuit court of Cooper county for a felonious assault, at the July term thereof for 1889. At the November term of the court, defendant filed an affidavit supported by the affidavits of two reputable persons, not of kin to or counsel for him, charging that the minds of the inhabitants of Cooper county were so prejudiced against him he could not have an impartial trial therein, and that the judge of the court was prejudiced against him, and for that reason he could not have a fair trial therein, and asked that the venue be changed to the circuit court of some other circuit, where such prejudice did not exist. Thereupon the court made an order for the election of a special judge to try the case and to determine defendant's application for a change of venue, and H. A. Hutchinson was duly elected, took the oath required by the statute, and awarded defendant a change of venue to the circuit court of Moniteau county in the same circuit. The cause was continued at the March term of the circuit court of the latter county for 1890, the regular judge presiding.

At the September term of the court an order was made by the clerk of the court on motion of the prosecuting attorney, for the election of another special judge to try the case, which order recited that it was alleged that H. A. Hutchinson, who was elected special judge in Cooper county, and who had awarded a change of venue in the case to Moniteau county, was disqualified, and had no jurisdiction to try the case, and thereupon Hon. James E. Hazell was duly elected special judge to try the case, the defendant objecting at the time to the proceeding.

Mr. Hazell duly qualified and proceeded to try the case, to which defendant objected for the reason as he alleged that said Hazell had no jurisdiction in the premises. This objection being overruled, the defendant excepted.

The defendant was convicted and sentenced to imprisonment in the county jail for a term of five months, and to pay a fine of $ 350.

Had Judge Hazell jurisdiction to try the case, is the controlling question presented on defendant's appeal. After a careful examinations of the sections of the statute and the former adjudications of this court on the subject of change of venue on account of the prejudice of the judge, we are constrained to answer the question in the negative. Judge Hutchinson, when elected and qualified as special judge, became the judge of the circuit court of the first judicial circuit as to this case, and he had jurisdiction to try it in any court in that circuit to which he sent it by change of venue.

The attorney general quotes section 4176, Revised Statutes, 1889, which provides that "such special judge shall possess, during such trial or hearing, and in relation thereto only, all the powers, perform the duties and be subject to the same restrictions as the judge of said court, but shall have no power whatever in any other cause than the one specified in the order of record," and insists that "the powers of such special judge are restricted and limited to those of the judge of said court, which, in this case, was the Cooper county circuit court, where the order was made, and his election took place. Nowhere is he given the powers and jurisdiction of the judge of the circuit court or of any other court in the circuit with respect to such case. Nowhere is it provided that, in the event of a change of venue, it shall be his duty to follow and try the case in the county to which the same was sent."

We do not concur in this argument. The court referred to in the section quoted is the circuit or criminal court. The circuit court is only one court, holding terms at different points, and at different times in the same circuit. The circuit court that sits in Cooper county is the same court that sits in Moniteau county. The regular judge is the judge of the circuit, and, as such, has jurisdiction to hold court in the counties of the circuit, the language of the constitution being that "the circuit court shall have jurisdiction, etc., and shall hold its terms at such times and places in each county as may be directed by law." In no proper sense can it be said that the circuit court sitting in Cooper county is a different court from the one that sits in Moniteau county.

It was held in the case of State v. Neiderer, 94 Mo. 79, 6 S.W. 708, that a special judge, elected under the provisions of our criminal code to try a...