State v. Hosmer

• Decision Date: 30 April 1885
• Citation: 85 Mo. 553
• Parties: The STATE v. HOSMER, Appellant.
• Court: Missouri Supreme Court

85 Mo. 553

The STATE

v.HOSMER, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Webster Circuit Court.--F. M. MANSFIELD, Esq., Special Judge.

AFFIRMED.

C. W. Thrasher for appellant.

(1) The court had no jurisdiction to order the election of a special judge. (2) The record should show the facts necessary to authorize the election of a special judge under the statute. State v. St. Louis, 1 Mo. App. 503; McCoy v. Zane, 65 Mo. 11; Smith v. Haworth, 53 Mo. 88; Schell v. Leland, 45 Mo. 289; Wood v. Boots, 60 Mo. 546; Kansas v. Campbell, 62 Mo. 585; Ellis v. Ry., 51 Mo. 200. (3) The court below erred in accepting the juror Love. (4) The court also erred in refusing to give for defendant the instruction to the effect that the jury were to determine the law and the facts. R. S., sec. 1594. And the court also erred in refusing to instruct for defendant that the jury could not convict, unless they found the words charged as libelous were false.

D. H. McIntyre, Attorney General, for the state.

(1) The record recites that the regular judge was disqualified from sitting, and that a special election being ordered, F. M. Mansfield was elected and qualified. This was sufficient. Besides, objections to the jurisdiction of the special judge should have been made at the time and cannot be entertained here. State v. Dodson, 72 Mo. 283. (2) The juror Love was competent. (3) Section 1594, Revised Statutes, 1879, does not mean that the jury are to be the judges of the law, but that under the instructions of the court they are to find the facts. The finding of the facts under the direction of the court is a finding of the law and the fact, or the application of the law to the facts. Hardy v. The State, 7 Mo., top p. 303; United States v. Battiste, 2 Sumner (U. S.) 240; Com. v. Porter, 10 Met. 263; Greenlf. Evid., sec. 179. (4) It was not error to refuse defendant's instruction telling the jury that unless they found the words in the information false, they should find defendant not guilty. This instruction had already been given. State v. Walton, 74 Mo. 270. And it devolved upon the defendant to show the truth of the language complained of. If the state proves the publication of a libelous article by defendant, it makes out a prima facie case, and it devolves upon defendant to rebut such evidence or prove the truth of the alleged libelous publication. Roscoe's Cr. Ev., 685; Lagrone v. State, 12 Tex. App. 426.

HENRY, C. J.

This is an information filed by the prosecuting attorney of Webster county, in this state, against defendant for publishing an alleged libel. The cause was tried before F. M. Mansfield, as special judge. Defendant was convicted, and has appealed to this court. The entry of record, in relation to the election of a special judge, is as follows:

“STATE OF MISSOURI

)

v.

)

Libel.

EDMUND HOSMER.

)

Now, at this day, comes the prosecuting attorney, etc., and also the defendant in his own proper person, and by attorney, and, the judge being disqualified from sitting in this case, and a special election of a judge being ordered, whereupon the clerk calling the roll of attorneys, and by a role of the disinterested members of the bar, F. M. Mansfield, a qualified member of the bar, was duly elected,” etc.

It is urged that the judgment is void, because Mansfield was not duly elected, and the point made is, that the order, failing to state the fact or facts which disqualified the regular judge, invalidated the election of a special judge. Section 1107, Revised Statutes of Missouri, which provides for the election of a special judge of a circuit court, is as follows: “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 of 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 partie sto 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 the 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 quailifications of a circuit judge, to hold the court for the occasion.”

There is nothing in the section which expressly requires that the facts which disqualify the judge should appear in the order, nor is there anything in the nature of the case which renders it necessary. The disqualifying facts are not issuable when the judge himself declares their existence. He alone determines, in such case, his own disqualification, and there is no necessity for stating more in the order than the one under consideration contains.

The objection to the competency of the juror Love is not well founded. On his voir dire he stated, on being asked if he had formed or expressed an opinion as to the guilt or innocence of the defendant, that, on general principles, he might say he had formed an opinion, but not in this particular case; that his opinion on general principles was, that some of the statements in some of the communications were not true, but about this case he had formed no opinion, and would be controlled by the law and the evidence. The meaning of the juror is somewhat obscure in some respects, but it is clear enough that he had formed no opinion of the defendant's guilt or innocence in this...