State v. Watkins

• Decision Date: 06 December 1922
• Docket Number: No. 22859.,22859.
• Citation: 295 Mo. 648,245 S.W. 1059
• Parties: STATE ex rel. HAZEL et al. v. WATKINS, Justice of the Peace.
• Court: Missouri Supreme Court

245 S.W. 1059

295 Mo. 648

STATE ex rel. HAZEL et al. v. WATKINS, Justice of the Peace.

No. 22859.

Supreme Court of Missouri, in Banc.

December 6, 1922.

Appeal from Circuit Court, Pemiscot County; Sterling E. McCarty, Judge.

Mandamus by the State, on the relation of Claude C. Hazel and others, to compel George W. Watkins, a Justice of the Peace, to change venue. The Circuit Court made its alternative writ peremptory, and an appeal was taken to the Springfield Court of Appeals (227 S. W. 1059), which transferred the cause to this court. Cause transferred to Court of Appeals.

Sam J. Corbett, of Caruthersville, M. O. Morris, of Mt. Vernon, and Jas. R. Brewer, B. A. McKay, and C. G. Shepard, all of Caruthersville, for appellant.

Everett Reeves, N. C. Hawkins, and J. E. Duncan, all of Caruthersville, for relators.

JAMES T. BLAIR, J.

Appellant is a justice of the peace in Little Prairie township in Pemiscot county. On April 6, 1920, Chester Ferguson made and filed before appellant "an affidavit for a state warrant" in which he "charged" respondents with a felony, to wit, "unlawfully, feloniously falsifying, changing, defacing and altering the legal ballots cast" by named persons. Appellant issued the warrant, and respondents were arrested and brought before appellant and gave bond. The hearing was set for April 28, 1920, and on that date respondents applied for a change of venue. Little Prairie township has within its bounds four justices of the peace. Three of these, appellant, J. C. Burrus, and W. W. Corbett, reside and have their offices in the city of Caruthersville, and R. R. Ring, the other, has his residence and office in that part of the township outside of said city. It seems to be a necessary inference that two of the three justices in Caruthersville hold the positions created by the first clause of section 2688, R. S. 1919, and that the third of this number holds a justiceship created by the following provisions of the same section in cities of more than 2,000 and less than 100,000 inhabitants. It does not appear which of the three positions each of the three holds. The fourth justice, R. R. Ring, has his residence and office outside the city of Caruthersville, and there seems to be no explanation of his official existence except in the provisions of section 2689, It S. 1919, known as the "five-mile law," unless he is located in a city of 2,000. It is alleged and admitted that, with respect to appellant, Burrus is the "next nearest justice."

In their affidavit for change of venue respondents state, among other things, that—

They "cannot have a fair and impartial trial before George W. Watkins, a justice of the peace within and for Little Prairie township, Pemiscot county, Mo., because of said justice's bias and prejudice against these defendants. The above-named defendants further say that they cannot have a fair and impartial trial before J. C. Burrus and R. R. Ring, other justices within and for Little Prairie township, Pemiscot county Mo., because of said justices' bias and prejudice against these defendants. Wherefore these defendants pray a change of venue to some other justice of the peace where such bias and prejudice does not exist and within Little Prairie township."

On this application appellant granted the change of venue, but attempted to send the case to a justice in another township in the county and refused and refuses to send it to W. W. Corbett, the other justice in Little Prairie township and the only one who is not stated in the affidavit to be disqualified by reason of bias and prejudice. Respondents then instituted a proceeding by mandamus in the Pemiscot circuit court to compel appellant to send the, case to Corbett's court. The circuit court made its alternative writ peremptory, and an appeal was taken to the Springfield Court of Appeals. That court transferred the cause to this court. The cause was first set in Division 1 and then transferred to Division 2, and afterward, transferred to court en banc.

The question whither the Court of Appeals has jurisdiction of this case is presented. Our brethren of that court construed certain decisions of this court to mean that jurisdiction is lodged here. It must be admitted that in these cases there are remarks which at least tend to support the conclusion reached by the Court of Appeals and its action in transferring the cause. That court reviewed the decisions and held it had "no jurisdiction of felony cases, and the case at bar grew directly cut of a felony charge, and is a part of that cause."

Proceedings to collect forfeited recognizances given in felony cases have been held to be...