State v. Lawson

• Decision Date: 05 June 1944
• Docket Number: 38933
• Parties: State v. A. E. Lawson, Appellant
• Court: Missouri Supreme Court

181 S.W.2d 508

352 Mo. 1168

State v. A. E. Lawson, Appellant

No. 38933

Supreme Court of Missouri

June 5, 1944

Rehearing and Motion to Transfer to Banc Denied July 3, 1944.

Appeal from Jefferson Circuit Court; Hon. Edward T Eversole, Judge.

Affirmed.

R. E Kleinschmidt and Frank Dietrich for appellant.

(1) The trial judge was without jurisdiction to pass upon his own qualifications and should have called in another judge to try the case. State ex rel. v. Waltner, 169 S.W.2d 697; State v. Bailey, 126 S.W.2d 224; State v. Irvine, 72 S.W.2d 96; State v. Creighton, 52 S.W.2d 556; State v. Myers, 14 S.W.2d 447. (2) Any criminal statute which violates any of the provisions of the Constitution of Missouri, such as Article IV, Section 53, Article II, Section 4, Article II, Section 30, Article IV Section 28, or the 14th Amendment of the Constitution of the United States, as does Section 4671, R.S. 1939, is void, and a defendant convicted thereunder should be discharged by this court. City v. Smith, 322 Mo. 1129, 19 S.W.2d 1; City of Lancaster v. Reed, 207 S.W. 868, and (Mo.), 201 S.W. 95; Lige v. Railroad Co., 275 Mo. 249, 204 S.W. 508; State v. Swift & Co., 270 Mo. 694, 195 S.W. 996; Houston v. Publishing Co., 155 S.W. 1068; State v. Miksicek, 225 Mo. 561; George v. Railroad Co., 214 Mo. 551; State v. Anslinger, 171 Mo. 600; Ex parte Smith, 135 Mo. 223; State v. Walsh, 136 Mo. 400; State v. Julow, 129 Mo. 163; St. Louis v. Roche, 128 Mo. 541; State ex rel. v. Herrmann, 75 Mo. 340; St. Louis v. Fitz, 53 Mo. 582; State v. Sloan, 167 S.W. 500; State ex rel. v. Walker, 34 S.W.2d 124.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) Appellant has by his conduct waived the right to complain of trial judge's disqualification. Secs. 4037, 4038, R.S. 1939; State v. Creighton, 52 S.W.2d 556; State v. Perkins, 95 S.W.2d 75; State v. Previtt, 39 S.W.2d 755; State ex rel. Sawyer v. Kelly, 48 S.W.2d 864. (2) Section 4671, R.S. 1939 is not unconstitutional. Sec. 4671, R.S. 1939; City of Springfield v. Smith, 19 S.W.2d 1; Ex parte Karnstrom, 249 S.W. 595; Hines v. Hook, 89 S.W.2d 52; McClaren v. Robins & Co., 162 S.W.2d 856; Thompson v. St. Louis-S.F. Ry. Co., 69 S.W.2d 937; St. Louis Union Trust Co., v. State, 155 S.W.2d 107; Star Square Auto Supply Co. v. Gerk; State ex inf. McKittrick v. Wilson, 166 S.W.2d 499; State v. Herrick, 241 S.W. 402; State v. Shelby, 64 S.W.2d 269.

OPINION

Ellison, J.

The appellant, a jewelry merchant, was convicted in the circuit court of Jefferson County of buying two watches and two finger rings from a minor, a fifteen year old boy, without the written consent of his parent, in violation of Sec. 4671. ^[1] The offense is a misdemeanor and ordinarily the appeal should go to a Court of Appeals, Sec. 12, Art. VI, Const. Mo. But appellant attacked the constitutionality of the statute in the trial court and does so here, thereby placing appellate jurisdiction in this Court. State v. Hershman, 346 Mo. 892, 143 S.W.2d 1025. Only two assignments of error are made: the first attacking the constitutionality of the statute, as just stated; and the second challenging the validity of the trial proceedings because the circuit judge refused to relinquish jurisdiction thereof after an affidavit of prejudice had been filed under Sec. 4037(4). We first take up this second assignment.

Sec. 4037 provides that when a criminal prosecution is pending in any circuit or criminal court, the regular judge "shall be deemed incompetent to hear and try said cause in either of the following cases: . . . fourth, when the defendant shall make and file an affidavit, supported by the affidavit of at least two reputable persons, not of kin to or counsel for the defendant, that the judge of the court in which said cause is pending will not afford him a fair trial." The next section, 4038, provides that whenever an application based on Sec. 4037 shall be filed, "it shall be lawful for the judge to hear and determine such application." There are further provisions in this section requiring the regular judge to disqualify himself for any of the reasons enumerated in Sec. 4037, of which he has personal knowledge; and, in event of his disqualification either on application or his own motion, authorizing the election of a special judge by written agreement between the defendant and the prosecuting attorney, with the concurrence and approval of the court (acting through the regular judge). Then Sec. 4040 provides that if in any case the regular judge shall be incompetent to sit, for any of the reasons mentioned in Sec. 4037, and no special judge has been provided, he shall call in an outside circuit or criminal judge. We shall return to a consideration of these statutes after stating what was done under them.

On April 25 the appellant filed a verified application supported by the joint affidavit of two persons, to disqualify the regular circuit judge under Sec. 4037, supra, charging he would not afford appellant a fair trial because of bias and prejudice. There is no contention that the application was not in due form, on its face. On June 30 the judge made and entered an order setting the application and affidavit for hearing on July 9, 1942, and requiring the applicant to be present with the two affiants. On that date the defendant appeared in person; but his attorney and the two affiants did not appear. Thereupon, without hearing any testimony and without the issuance of any citation or subpoena, so far as the record shows, the court entered the following order:

"Now on this day the petition for disqualification of Judge coming on for hearing, and Defendant appearing in person and his attorney failing to appear, and Defendant and his attorney failing to comply with the Order of the Court heretofore made on June 30th, 1942, relative to producing in Court the two persons making the two supporting affidavits filed by the Defendant, so that said persons might be questioned as to whether or not they made such affidavits, and, in fact, whether or not there are two such persons, and whether or not such persons are of good character, as provided by Statute, they being unknown to the Court, the application for disqualification of the Judge is at this time overruled and case continued to the next regular term of this Court."

A week later, on July 15, the appellant filed a verified motion to set aside said court orders of June 30 and July 9, and to call in another judge. The motion was based on the ground that the two orders were void since the regular judge had previously lost jurisdiction of the cause on April 25 when the application to disqualify him for prejudice was filed. On that point cases were cited holding that a judge whose disqualification is thus alleged in due form has no power to pass on his own prejudice, but can only call in another judge pursuant to Sec. 4040 -- and the motion asserted the application was in due form.

At the next (September) term the court, acting through the regular judge, ordered that the foregoing motion be stricken from the docket. When the cause came on for trial appellant appeared in person and by counsel and entered a plea of not guilty. But he objected to a trial by the regular judge; and asked leave to refile his application and affidavit for disqualification previously filed on April 25. He further offered to prove that the two supporting affiants were qualified under Sec. 4037; that they were reputable persons; were not of kin to or counsel for the appellant; and that they and the appellant had duly made and subscribed the affidavits to the application, as shown therein. The prosecuting attorney objected on the ground that appellant and his counsel had been offered an opportunity to make that showing on July 9; and that it was now too late for the State to make an investigation as to their good repute. The objection was sustained and the trial proceeded.

The only point made in appellant's brief on this assignment is the same as that urged in his motion of July 15 below, namely: that the regular judge was bound by the application (and affidavits) for his disqualification, since he was not qualified to pass on his own prejudice and the application was in due form; in consequence of which his judicial power was limited to calling in another judge. As heretofore stated the application was in due form on its face. This the Attorney General concedes; and he also concedes that a judge in this state cannot pass on his own prejudice when it is thus challenged. But he contends for the State that although the application outwardly was in due form, nevertheless the regular judge could inquire whether the statutory requisites underlying the application had been met. Among these were the basic (not superficial) requirements that the application actually must be made and sworn to by the accused and supported by affidavits made by two reputable persons not of kin to or of counsel for the accused.

This contention is sound. Sec. 4038 expressly provides that it shall be lawful for the regular judge to "hear and determine" the application; that a special judge may be elected by written agreement of the defendant and prosecuting attorney, with the concurrence and approval of the court acting through the regular judge and Sec. 4040 provides the regular judge (not the court) shall call in an outside judge. The statutes clearly show the hands of the regular judge are not completely tied when an application for his disqualification is filed. The court's order of July 9 expressly states that the purpose of the order of June 30 was to have the parties in court so it might be ascertained whether the two affiants did make the affidavits; whether there were such persons; and...