State v. Pope

• Decision Date: 21 February 1905
• Citation: 85 S.W. 633,110 Mo. App. 520
• Parties: STATE v. POPE.
• Court: Missouri Court of Appeals

85 S.W. 633

110 Mo. App. 520

STATE v. POPE.

St. Louis Court of Appeals. Missouri.

February 21, 1905.

COURTS — CIRCUIT COURT — INDEPENDENCE IN DIFFERENT COUNTIES — EVIDENCE — JUDICIAL NOTICE.

1. The Court of Appeals will take judicial notice that two counties are in the same judicial circuit, of the number of judges in such circuit, and of the convention of the court on a certain date in one of the counties of the circuit.

2. Const. art. 4, §§ 1, 22-24, 29, define the jurisdiction and powers of the circuit courts, require them to hold terms in each county of their circuits, empower them to exercise superintending control in each county, and authorize a judge of one circuit to hold court in any county in another circuit if the judge of the latter circuit be disqualified. Rev. St. 1899, § 2597, authorizes a disqualified judge to set the cause for trial in term or in vacation, and call in a judge of another circuit, who is thereupon empowered to try the cause, and is given all the powers and duties of the regular judge, with authority to adjourn the cause, which may be reset by the regular circuit judge, if the judge specially called in fails to appear, so as to suit the latter's convenience. Section 2598 provides that, when the cause is set for trial in vacation, the judge shall adjourn the term to the day specified, at which time an adjourned term may be held for the trial of the cause. Held, that a separate and distinct circuit court exists in and for each county in which a circuit judge sits, though his circuit consists of several counties; and, where the regular judge is disqualified, he may set the cause for trial in the vacation of the circuit court of the county in which the cause is to be tried, and a judge who is called in from another circuit may try the cause at the time specified, though the regular judge of the circuit is then holding a term of court in another county of his circuit.

Appeal from Circuit Court, Ripley County; Samuel Davis, Judge.

Add Pope was convicted of an illegal sale of liquor, and appeals. Affirmed.

The defendant Add Pope was jointly indicted with one J. D. Thurman at the April term, 1904, of the circuit court of Ripley county for selling intoxicating liquors in less quantity than three gallons without taking out license as a dramshop keeper. Afterwards, on the 30th day of May, 1904, said court being in session, the Honorable James L. Fort, the regular judge of said court, presiding, the defendants filed an application in due form for a change of venue in said cause, alleging that they could not have a fair and impartial trial before said judge. On the same day the court took up and considered said application for a change of venue and granted the same. Also on the same day the court made the following order: "James L. Fort, judge of the circuit court of Ripley county, being unable to hold the remainder of the April, 1904, term of this court, and there being several cases now pending in said court in which changes of venue have been granted, it is therefore ordered by the court that Honorable Samuel Davis, judge of the Fifteenth Judicial District of the state of Missouri, be and he is hereby requested to hold the remainder of said term and preside in the trial of said cases, and the clerk of this court is hereby directed to forward said cases on the judge's docket of this court, beginning on page 69 thereof, and enter the same for trial on Tuesday, June 7, 1904, and following days, so that no more than ten of said cases will be set for trial on any one day." The record shows that in obedience to the above order the Honorable Samuel Davis, judge of the Fifteenth Judicial Circuit, opened the said April adjourned term of the Ripley county circuit court on Tuesday, June 7, 1904. Afterwards, to wit, June 8, 1904, the defendants filed the following plea, challenging the jurisdiction of the court to further proceed in said cause: "Now come the defendants in the above-entitled cause, and file this their plea to the jurisdiction of this court, and say that this court ought not to have or take jurisdiction of said above cause, to try the same or make any other disposition thereof, and say that this court cannot legally take jurisdiction of said above cause for any purpose, because they say and show this court that in this, the 22d Judicial District of the state of Missouri, there is now being held in the city of Poplar Bluff, in the county of Butler, in said district, the regular June term of the Butler county circuit court; that the same is being presided over and held by the Hon. James L. Fort, the regularly elected and duly qualified judge of said circuit court, in said judicial district; that under the law there is one and only one circuit court for said judicial district, and that said circuit court cannot be in session at two different places in said district at one and the same time." The plea to the jurisdiction was taken up, considered, and overruled by the court, and the defendants then and there excepted to the ruling of the court thereon. On the following day (June 9th) the defendants waived a formal arraignment, entered their pleas of not guilty, and the case was tried to a jury.

Upon the trial the state introduced evidence which tended to and did support the allegations of the indictment as far as the defendant Add Pope was concerned, but failed to sustain the issues against defendant Thurman. The court peremptorily directed a verdict in behalf of defendant Thurman, and he was therefore acquitted by the jury. The court properly instructed the jury as to the law of the case pertaining to the guilt or innocence of the defendant Pope, and they returned a verdict finding Pope guilty as charged, fixing his punishment at a fine of $40. On this verdict, judgment was entered, and thereupon said defendant filed a motion for a new trial and in arrest of judgment. These motions were overruled, exceptions saved, and the case comes here by appeal for review.

Appellant, though represented by able counsel, does not complain here of errors committed on the trial other than the ruling of the court on his plea to the jurisdiction. This being a criminal case, however, we have taken pains to go through the record with care to ascertain if there was error, but none has been found. In their brief and oral argument counsel press one question only on this court; that is, that the trial court erred in overruling the plea to the jurisdiction. In the court below, to sustain the allegations of said plea, the defendant introduced in evidence orders of the Butler county circuit court (which county adjoins Ripley county and is in the same circuit) for the purpose of showing that Judge Fort, the regular judge for that circuit, was then holding the regular June term of the circuit court of Butler county in said circuit. This court will take judicial notice of the fact that both Butler county and Ripley county are in one and the same judicial circuit (the Twenty-Second), and that the regular June term of the circuit court of Butler county convened, as provided by law, on Monday, June 6, 1904, and that there was but one regular judge for said circuit. It is shown that the regular June term of the Butler county circuit court was in session, the regular judge presiding at the time; that the April adjourned term of the Ripley circuit court was convened with Judge Samuel Davis presiding.

J. H. Raney and Alf. Perkons, for appellant. Thomas F. Lane, for the State.

NORTONI, J. (after stating the facts).

Appellant contends that "two circuit courts for the same circuit cannot be convened and held on the same day." A court is a judicial assembly. Bouvier gives the word "court" this definition: "A body in the government to which the public administration of justice is delegated. The presence of a sufficient number of the members of such body, regularly convened in an authorized place at an appointed time, engaged in the full and regular performance of its functions." The Supreme Court of California has said: "A court is a tribunal presided over by one or more judges for the exercise of such judicial power as has been conferred upon it by law." The Supreme Court of Missouri, in State ex rel. v. Woodson, 161 Mo. 444, 61 S. W. 252, has adopted the above definitions. Section 1, art. 4, Mo. Const., provides that the judicial power of the state as to matters of law and equity is vested in the Supreme Court, circuit courts, etc. Section 22 of the same article provides that the circuit court shall have jurisdiction, etc. It shall hold its terms at such time and place in each county as may be by law directed, but at least two terms shall be held every year in each county. Section 23 provides that the circuit court shall "exercise superintending control over * * * in each county in their respective circuits." Section 24 provides that the Legislature may divide the state into convenient judicial circuits. Section 29 provides as follows: "If there be a vacancy in the office of judge of any circuit, or if the judge be sick, absent, or from any cause unable to hold any term or part of term of court in any county in his circuit, such term or part of term of court may be held by a judge of any other circuit; and at the request of the judge of any circuit, any term or part of term in his circuit may be held by the judge of any other circuit, and in all such cases, or in any case where the judge cannot preside, the General Assembly shall make such additional provision for holding court as may be found necessary."

It appears from the above sections of the Constitution that the circuit courts, while they are courts of general jurisdiction, are courts, not for an entire circuit, but for each county in which a circuit court sits. The judge, however, is for the circuit. So, how the sitting of the circuit court in Ripley county, if regularly in session, authorized by law, would interfere with the circuit court sitting in ...