State v. Slate

Citation278 Mo. 570,214 S.W. 85
PartiesSTATE ex rel. McALLISTER, Atty. Gen., v. SLATE, Judge.
Decision Date14 June 1919
CourtUnited States State Supreme Court of Missouri

Frank W. McAllister, Atty. Gen., John T. Gose and Shrader P. Howell, Asst. Attys. Gen., and Lee B. Ewing, of Nevada, Mo., for relator.

Irwin & Haley and A. T. Dumm, all of Jefferson City (Roy Williams, of Marion, Kan., of counsel), for respondent.

FARIS, J.

This is an original proceeding in prohibition, whereby it is sought to prohibit respondent, as judge of the circuit court of Cole county, from taking further jurisdiction in the trial of the case wherein the state of Missouri is plaintiff and John W. Scott is defendant, said cause being No. 1879 upon the docket of the Cole county circuit court.

Heretofore, upon the petition of relator by the Attorney General of the state of Missouri, we issued our preliminary rule in prohibition, which rule it is now sought to make absolute.

The facts upon which it is sought by the state, through its Attorney General, to prohibit respondent from taking further jurisdiction in the trial of the case of State v. Scott, as these facts are set forth in the petition for our writ, run briefly as follows: At and prior to the 2d day of February, 1918, which is the date upon which our preliminary rule herein was issued, there was pending against said John W. Scott, in the county of Cole aforesaid, an indictment in two counts charging defendant therein with embezzlement and grand larceny. By virtue of an order made by the Governor of the state of Missouri, pursuant to the statute in such cases made and provided, the Assistant Attorney General, together with special counsel for the state, appeared in the circuit court of Cole county and aided in the prosecution of said case of State of Missouri v. Scott. After the making of said order by the Governor, and on the 27th day of November, 1917, the case of State v. Scott came on to be heard before respondent and the state by Shrader P. Howell, Assistant Attorney General, and Lee B. Ewing, as special counsel for the state, appeared and announced that it was ready for trial. Thereafter, but prior to the impaneling of the trial jury for the trial of the case, said Howell and Ewing became possessed, it is alleged, of information and knowledge of the existence of prejudice on the part of the respondent against the state of Missouri. The state thereupon, through its counsel, withdrew its announcement of ready for trial, and, having first obtained leave of court in that behalf, filed a formal, verified motion alleging the disqualification and incompetence of respondent to sit in the trial of the case of State v. Scott on account of the alleged prejudice of said respondent against the state. Thereupon, on the ground of this alleged disqualification of respondent, the state moved that respondent proceed in accordance with the provisions of section 5201, R. S. 1909. The latter section makes provision for the calling in of a special judge to sit in the trial of any criminal case wherein the regular judge is disqualified.

This motion being overruled, relator made the allegations therein and the fact of overruling such motion the grounds of application for our writ. In the petition for our writ relator avers that respondent is prejudiced against the state in said case of State v. Scott, and by reason thereof that he is incompetent to hear and determine said case, and prays that we issue our writ of prohibition to prohibit respondent from taking further proceedings in, or holding further jurisdiction therein, and from taking further cognizance of said case.

Our preliminary rule was, as above stated, issued, and for return thereto respondent admits all of the allegations of said petition except the fact of his prejudice in any degree in favor of the said Scott, or against the state of Missouri, which fact of prejudice he categorically denied. Respondent further denies that Messrs. Howell and Ewing, as Assistant Attorney General and special counsel as aforesaid, were legally in full charge of the prosecution in the case of State v. Scott, and avers the fact to be that their acts in that behalf are without authority and not warranted by the law of the state of Missouri. This latter allegation is not referred to in the briefs, and we assume, therefore, that it has been abandoned.

The denial by respondent of the alleged fact of his prejudice raised an issue of fact in the case. Thereupon this court made an order appointing J. P. McBaine, Esq., of the Boone county bar, as commissioner to hear and see the evidence adduced, and to find, make, and return to us his findings and conclusions both of fact and of law.

In due course our learned commissioner performed the duties made incumbent upon him by our order and, pursuant to the command thereof, has reported to us that he finds the issues joined, both of law and of fact, against the respondent, and accordingly recommends that the preliminary rule herein issued be made absolute. To this report respondent has duly filed his exceptions, wherein in he takes issue both upon the facts and the law. The case is before us, therefore, upon both of these questions.

I. Regard being had to the briefs of able counsel, and to the positions assumed and the arguments made therein, it is apparent that some confusion exists as to the exact nature of the relief sought herein by relator. This thought obtrudes itself from the fact that the argument is in large part directed against assumed position that the relator is asking for prohibition, with the object of procuring a change of venue on the part of the state. From this assumption as a basis, it is strenuously urged that both the law and the Constitution forbid a change of venue to the state, and therefore no such change is permissible.

It may be wise, therefore, in passing, to dispose of this erroneous view by a brief recourse to the history of the law and to first principles; whereupon much that is urged against the state's position at once becomes wholly irrelevant. In the very twilight of the trial jury's origin, men of the vicinage who were witnesses, or recognitors, as well as jurors, came up to the king's trial courts from the identical neighborhood in which the crime was committed for which accused was to be tried. They were brought up by a writ, which writ, from the command that it contained, came to be called a "venire facies"; hence the word "venire," which from being used as the name of the writ which brought the jurors up has come to be used sometimes in the books as the name collectively of the jurors or those brought up by the writ. Whether we derive the word "venue" from the French as the anglicized spelling of the past participle of "venir," to come, and thus it means "(those who) come," or from the modern French substantive, meaning "a coming," or whether it is derived from the Latin "vicinitatum," meaning "of the neighborhood," shortened by usage to "vicinetum," and again in law Latin to "visnetum," whence "visne," which in early days was used and written interchangeably for "venue" (10 Bacon Abr. 364), we need not stop to ascertain; for the matter is one obscured by thick doubt. From meaning the place from which the jurors came, in course of time it came to mean the place to which the jurors came—i. e., the place of trial. According to the universal trend of modern authority "venue" now means "the place of trial for an action." 40 Cyc. 11. In the true sense in which we are here compelled to consider it, the word does not mean the judge or the court before whom an accused is put upon his deliverance, but it means the place at which he is to be tried. Hence, if that place of trial is not to be changed, or sought so to be by this, or as a result of this, proceeding, the matter is one merely of a change of the judge before whom the trial is to be had, and not a change of the place— i. e., the venue whereat he is to be brought to trial. It follows that the expression "change of venue" is a misnomer, and all arguments against the permissibility of a change of venue to the state have nothing to do with the case, enjoying in that behalf a condition bearing a striking similitude in all respects to that of "the flowers that bloom in the spring."

II. Upon the question whether prohibition is the proper remedy, the case of State ex rel. T. Wear, 129 Mo. 619, 31 S. W. 608, is upon principle conclusive. This is so apparent as scarcely to require exposition. The ultimate facts in the Wear Case were that Judge Wear, being concededly, related to the defendant, and therefore biased and prejudiced, as the Legislature had determined, by the very fact that it passed the statute disqualifying him and others similarly situated, yet persisted in sitting in the trial of the case, or in preventing another judge from taking jurisdiction therein. If the fact of the bias of Judge Wear had not been foreclosed by the legislative determination of the fact of prejudice from the fact of relationship, but had been left to be determined by evidence adduced it is as plain as a pikestaff that the cases presented are precisely alike. Therefore, if the fact of respondent's prejudice and bias shall have been shown by the evidence in this case, he stands in a position in no wise different from that of Judge Wear, and so prohibition will' lie.

Therefore, if we shall find as a matter of fact from the evidence in the case that respondent is prejudiced, we bring the case, as we look at it, precisely within" the procedure successfully invoked in the Wear Case. How stands the evidence upon this question of fact?

Our learned commissioner who heard the evidence and who was by virtue of our order empowered to make and report to ...

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