State v. Sanders

Decision Date12 October 1891
Citation106 Mo. 188,17 S.W. 223
CourtMissouri Supreme Court
PartiesSTATE v. SANDERS.

Appeal from circuit court, Ozark county; W. J. ORR, Special Judge.

Samuel Sanders was convicted of a felonious assault, and appeals. Affirmed.

Love & Plattenburg, for appellant. John M. Wood, Atty. Gen., for the State.

MACFARLANE, J.

Defendant was indicted, tried, and convicted in the circuit court of Ozark county for a felonious assault upon James Stoneman, by shooting him with a rifle from ambush, while in his field gathering corn. Stoneman, the prosecuting witness, testified that he saw and recognized defendant immediately after the shooting at the place from which he saw the smoke of the gun. Defendant undertook to prove that he was elsewhere when the shooting occurred. The assault was made in the morning between 8 and 12 o'clock, and it was shown that defendant arrived on horseback at Rock bridge, six miles away, at about 11 o'clock, not later, and was seen on the road about 10 o'clock. His whereabouts between 8 and 10 was not shown.

1. The case was tried at the October term, 1889, of the Ozark county circuit court. The judge of the court being unable to hold the term, an election was held under the provisions of section 1107, Rev. St. 1879, and William Monks was elected special judge, who, having been duly qualified, proceeded to discharge the duties of circuit judge for the term. The special judge, being disqualified to sit in this case by reason of having been of counsel therein, ordered an election of a special judge for the trial. An election was held, and W. J. Orr elected. The record recites the holding of the election, and that more than three attorneys were present and voted who were not of counsel in the case; that "W. J. Orr was elected special judge, who took the oath of office and qualified as such special judge." After the election defendant filed written objections to W. J. Orr as special judge, giving two reasons: First, that one of the attorneys voting at the election has been of counsel in the case; and, second, because W. J. Orr has not been a voter in the state for the period of three years. On the hearing of these objections it was agreed that J. L. Davis was prosecuting attorney at the time the indictment was found by the grand jury, and voted in the election of special judge, and that more than three attorneys not of counsel voted besides Mr. Davis, and "that W. J. Orr has resided in Missouri since February, 1856, until November, 1884, when he moved to Oregon, and returned to this state in November 1885, and has resided here ever since." The statute (section 1878, Rev. St. 1879) authorizes the judge of the court, when himself disqualified to sit in a case, "by an order of record, to empower the members of the bar present, to the number of three or more, duly enrolled in said court, and licensed attorneys of this state, and not of counsel in the case, to proceed to the election of a special judge for the trial of the particular cause pending.' The record shows and it was admitted that the requisite number of lawyers, having the proper qualification to constitute a legal election, were present. The record does not show for whom Mr. Davis voted, nor that the result was changed by his vote. Moreover, the agreed statement does not show that he was counsel in the case when the election was held, which is necessary to a disqualification under the statute. Whether it would be competent to go behind the record, to inquire into the qualifications of those voting at an election held under this statute, it is not necessary to decide. Neither is there force in the objection that the special judge was not qualified to act for the reason that his residence in this...

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40 cases
  • State v. Barrington
    • United States
    • Missouri Supreme Court
    • June 1, 1906
    ...pending is purely statutory. State v. Lanahan, 144 Mo. 31, 45 S. W. 1090; State v. Thompson, 141 Mo. 408, 42 S. W. 949; State v. Sanders, 106 Mo. 188, 17 S. W. 223; State ex rel. v. Wofford, 119 Mo. 408, 24 S. W. 1009. It is made manifest from the disclosures of the record in this cause tha......
  • State ex rel. Dunlap v. Higbee
    • United States
    • Missouri Supreme Court
    • November 17, 1931
    ...186 Mo. 399; State v. Greenwade, 72 Mo. 298; Blanchard v. Haseltine, 79 Mo.App. 248; Speer v. Burlingame, 61 Mo.App. 75; State v. Sanderson, 106 Mo. 188. Gantt, J. Original proceeding in prohibition. Cause submitted on the pleadings. Relators challenge the authority of Hon. Paul D. Higbee, ......
  • State v. Stewart
    • United States
    • Missouri Court of Appeals
    • April 14, 1925
    ...order to disqualify him, he must be of counsel at the time the election is held, " citing State v. Sanders, 106 Mo. 188, 17 S.W. 223. In the Sanders case (l. c. 193), supra, it is said: the agreed statement does not show that he was counsel in the case when the election was held, which is n......
  • State v. Hubbard
    • United States
    • Missouri Supreme Court
    • June 7, 1943
    ... ... 9. "Unless you find and ... believe from all the facts and circumstances given in ... evidence the presence of defendant at the place of the ... alleged assault, and his guilt beyond a reasonable doubt, you ... should acquit." This instruction is from State v ... Sanders, 106 Mo. 188, 195-196, ... [171 S.W.2d 708] ... 17 S.W. 223 and was held to be sufficient in that and the ... following cases: State v. Shelton, 223 Mo. 118, 137, ... 122 S.W. 732; State v. Peters (Mo.), 123 S.W.2d 34, ... 37; State v. Nasello, 325 Mo. 442, 30 S.W.2d 132. A ... ...
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