State v. Landon

• Decision Date: 08 November 1926
• Docket Number: No. 15750.,15750.
• Citation: 289 S.W. 661
• Parties: STATE ex rel. LAFFERTY v. LANDON, Judge.
• Court: Missouri Court of Appeals

289 S.W. 661

STATE ex rel. LAFFERTY v. LANDON, Judge.

No. 15750.

Kansas City Court of Appeals. Missouri.

November 8, 1926.

Rehearing Denied January 3, 1927.

Original proceeding by the State, on the relation of William H. Lafferty, for writ of prohibition against Thad B. Landon, Judge of Division 8 of the Circuit Court of Jackson County, having criminal jurisdiction. Writ quashed, and proceedings dismissed.

Frank D. Rader and Paul S. Conwell, both of Kansas City, for relator.

Forest W. Hanna and Howard L. Jamison, both of Kansas City, for respondent.

BLAND, J.

This is an original proceeding wherein relator seeks a writ of prohibition against the respondent, Thad B. Landon, one of the judges of the circuit court of Jackson county, Mo. The preliminary writ was issued, and the cause now comes up on the question as to whether the writ should be made permanent.

The facts show that on January 9, 1926, the grand jury indicted relator, charging him with a misdemeanor. On June 28, 1926, his cause was called for trial in Criminal Division A of said court over which respondent presides as judge, whereupon the prosecuting attorney dismissed the indictment, and filed an instrument designated as "substitute information." Thereupon relator filed a motion for a preliminary hearing, which was overruled. He then filed a plea in abatement, which was likewise overruled. A motion to quash the "substitute information" was then filed and overruled. Thereupon relator made application for a continuance, which was denied, and he filed a motion for a change of venue based on the alleged bias and prejudice of the respondent against the relator. It does not seem that the application for a change of venue was resisted by the prosecuting attorney, but respondent denied it on the ground that relator had seen fit to submit to the judgment of the court upon the application for a preliminary hearing, the plea in abatement and the motion to quash the information, and, therefore, that it came too late. Relator then applied to this court for a writ prohibiting respondent from assuming further jurisdiction in the case.

The application for change of venue shows that it was sworn to by the relator on June 22, 1926, six days before the proceedings of June 28th, heretofore mentioned, were had. The application was in due form, and it is relator's contention that it was the duty of the respondent to immediately transfer the cause to another division of the circuit court of Jackson county upon its being filed. No doubt this is the general rule.

Respondent urges that relator showed a gross lack of diligence in waiting six days after the information came to him of the bias and prejudice of the respondent before filing the application for a change of venue, and in the meantime submitting to the jurisdiction of respondent and obtaining his judgment upon, the motion for a preliminary hearing, the plea in abatement, the motion to quash the substitute information, and, the motion for continuance. We think there is no question but that respondent's contention is well taken. It has been often held that such an application must disclose diligence, and, if founded upon the prejudice of the judge, it should state when this condition was discovered, and that one may not hold an application for change of venue in reserve as the relator did in this case. State v. Weber (Mo. Sup.) 188 S. W. 122, 127; State v. Caudle, 174 Mo. 388, 74 S. W. 621; St. L., C., G. & Ft. S. Ry. Co. v. Holaday, 131 Mo. 440, 452, 453, 33 S. W. 49; sections 3975, 3976, R. S. 1919.

However, relator insists that under the laws of Missouri and the rules of the circuit court of Jackson county, Mo., he was required to file his preliminary pleadings in Criminal Division A of said court over which respondent presides, and, had he refused to do so and filed in lieu thereof his application for change of venue, it might have been well said that the appplication was premature. We do not so construe the statute and rules of the court. The Act of March 11, 1921, abolishing the criminal court of Jackson county, Mo., and vesting the jurisdiction of causes theretofore cognizant therein in the circuit court of that county (see Laws of 1921, page 220), provides (section 7) that the judges of that court shall assign one or more of their number to sit separately for the trial of criminal cases. Section 9 of the act provides for the allowance of changes of venue "in any criminal case pending therein, for any cause for which such changes are or may be allowed from other courts of this state having criminal jurisdiction"; that, whenever such changes are asked on the grounds of prejudice of any of the judges to whom it may have been assigned for trial, no change should be awarded, but the cause should be transferred to another division of said court to which the trial and disposition of criminal cases may have been allotted by the court. Section 10 empowers judges of that court to adopt and promulgate rules and regulations to carry into effect the act.

Pursuant to the act, the judges of said court adopted rules pertaining to criminal causes,...