State v. Shea

• Decision Date: 21 May 1888
• Citation: 8 S.W. 409,95 Mo. 85
• Parties: STATE v. SHEA.
• Court: Missouri Supreme Court

8 S.W. 409

95 Mo. 85

STATE v. SHEA.

Supreme Court of Missouri.

May 21, 1888.

1. CRIMINAL LAW — TRIAL — JURISDICTION — SENTENCE.

Under Rev. St. Mo. §§ 1877, 1878, 1881, providing that no judge of a circuit or criminal court shall be competent to try any indictment or criminal prosecution when he shall have been counsel in the cause; and that, in case of such disqualification of the regular judge, a special judge may be elected; but that if a competent special judge cannot be elected, or will not serve, such disqualified judge may "notify and request the judge of some other circuit to try the cause; and it shall be the duty of the judge so requested to appear * * * for the trial of said cause; and he shall, during said trial, and in relation to said cause, possess all the powers and perform all the duties of a circuit judge," — a sentence on a trial and conviction for murder, passed by a circuit judge who had not tried the cause, at the request of the regular judge of the court in which the cause was pending, the latter having been prosecuting attorney on the trial, is unauthorized and coram non judice, the regular judge not being disqualified from passing sentence by having acted as prosecuting attorney, and the only purpose, under the statute, for which a judge of another court may be called in being for the trial of a cause when the regular judge is disqualified, and a special judge cannot be elected or will not serve.

2. CRIMINAL LAW — CHANGE OF VENUE — PRESUMPTION AS TO REGULARITY OF PETITION.

Where, on appeal from a conviction for murder, the bill of exceptions recited that defendant's petition for change of venue "was regularly, in due form, and complied with all the requirements of law," and that the court refused to permit counsel to file the same, and refused to entertain the same, on the ground that it had no jurisdiction to pass on the petition, it must be presumed that such petition was sufficient and regular in all respects, although it was not preserved by the bill of exceptions, and that such change of venue should have been granted.

Appeal from St. Louis criminal court; J. C. NORMILE, Judge.

Thos. B. Harvey and Cornelius McBride, for appellant. The Attorney General, A. C. Clover, and C. O. Bishop, for the State.

SHERWOOD, J.

At the November term, 1881, the defendant was indicted for the murder of Patrick Doran. He was arraigned, and pleaded not guilty, and counsel were assigned him. The cause was continued, and specially set for trial on February 6, 1882. On that day defendant moved the court to continue the cause until "defendant's application for a change of venue should be disposed of in the St. Louis circuit court," which motion was granted. On February 15, 1882, defendant filed a petition and a motion for a special venire of persons residing outside the city of St. Louis, and within the county of St. Louis, which, being taken under advisement, was granted on February 20, 1882. On that day the cause was continued "for want of time to try," to the March term, 1882, and specially set for trial on March 14, 1882, and a special venire of citizens of the county of St. Louis ordered for that day to try the cause, as prayed for by the defendant. On February 23, 1883, the circuit attorney moved the court to vacate the order for a special venire, which motion was overruled, and such steps were taken by the circuit attorney as resulted in a writ of prohibition issuing from this court forbidding the judge of the St. Louis criminal court to do or permit to be done anything under said order for a special venire. State v. Laughlin, 75 Mo. 147. On March 3, 1882 being the last day of the January term, 1882, defendant filed a bill of exceptions, which was signed by the judge of the court, setting forth that "on the 15th day of February, 1882, the defendant, in his own proper person, and by his attorney, in open court, tendered and requested to be permitted to file a petition addressed to the court, and subscribed and in due form of law, sworn to by the defendant, John David Shea, praying for a change of venue from the city of St. Louis on the ground of the prejudice of the inhabitants of the Eighth judicial circuit against the defendant, which said petition was regularly in due form, and complied with all the requirements of law." The petition does not appear in the bill of exceptions, so that it may be seen. The bill further sets forth that "the said court refused to permit counsel to file said petition for a change of venue, and refused to entertain the same in any way whatever, on the ground that said court had no jurisdiction to hear or pass upon said petition." Said bill contains an affidavit of counsel, filed on said February 15, 1882, which states that on February 2, 1882, "defendant made in proper form and filed in the circuit court of St. Louis his petition for a change of venue from the city of St. Louis, on the ground of the prejudice of the inhabitants of said city," and that "said application was heard by said circuit court, and decided this day, [February 15, 1882,] and was refused by said court; and, in view of said proceedings before the circuit court, defendant could not consistently make in the St. Louis criminal court application for a change of venue on the ground of the prejudice of the inhabitants of the city of St. Louis, or a motion for a special venire of persons from St. Louis county outside of the said city to try the cause; which said application and motion they herewith make and present to the St. Louis criminal court this day, and in due form as required by law." At the March term, 1882, (on April 10th,) the criminal court, in obedience to the mandate of this court, set aside the order of February 20th, granting a special venire from the county. On the next day (April 11th) appellant filed another petition for a special venire from the county, which was overruled, and on April 19th the cause was continued to the May term, 1882, "for want of time to try." At the May term, 1882, (or May 16th,) appellant again filed a motion for a special venire from the county, which was overruled as before. This last motion is the only one of all those so far mentioned which is preserved in the record, and sets forth that "your petitioner would respectfully show and state that an indictment charging him with murder in the first degree * * * was preferred and filed in the St. Louis criminal court * * * at the November term, 1881, and is now pending and is set down for a hearing and trial on the 22d day of May, 1882. And petitioner would further state that he is informed, and does verily believe, that the minds of the inhabitants of the city of St. Louis are so prejudiced against him that he cannot have a fair and impartial trial therein, and would pray that the court order a special venire, to consist of persons who reside outside of the city of St. Louis and within the county of St. Louis, to try said cause." On May 29, 1882, a jury was impaneled to try the cause, and on June 2d the verdict was rendered. On June 5th a motion for a new trial was filed, and on June 7th an amended motion for new trial was filed. On July 17th these motions were submitted to the court. On November 7, 1882, defendant escaped from the jail. On November 13, 1882, the motions for new trial were overruled, and on December 11, 1882, a bill of exceptions was signed by Judge LAUGHLIN and filed. On July 20, 1887, defendant, being in custody, was brought into court for sentence; but on its appearing that Hon. JAMES C. NORMILE, the judge of the St. Louis criminal court, had been circuit attorney, representing the state at the trial of the cause, and had prosecuted the indictment against defendant, the court made an order calling upon Hon. W. W. EDWARDS, the judge of the Nineteenth judicial circuit, to pronounce the sentence of the court; and on July 22, 1887, Judge EDWARDS appeared in the St. Louis criminal court in pursuance of said order, and pronounced the judgment and sentence of the court upon the defendant. Exceptions were saved as to the action of the court in relation to calling in Judge EDWARDS to enter final judgment and to sentence the defendant. Two questions are thus presented by the record: First, whether the judge of the St. Louis criminal court had any authority to call in Judge EDWARDS simply to pass sentence upon the defendant; and, seco...