State v. Watkins

• Decision Date: 26 June 1923
• Docket Number: No. 3340.,3340.
• Citation: 212 Mo. App. 501,253 S.W. 781
• Parties: STATE ex rel. HAZEL et al. v. WATKINS, Justice of the Peace.
• Court: Missouri Court of Appeals

253 S.W. 781

212 Mo. App. 501

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

No. 3340.

Springfield Court of Appeals. Missouri.

June 26, 1923.

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

Proceeding in mandamus by the State, on the relation of Claud C. Hazel and others, against George W. Watkins, a justice of the peace. A peremptory writ was issued, and respondent appeals. Affirmed.

Sam J. Corbett, Jas. R. Brewer, B. A. McKay, and C. G. Sheppard, all of Caruthersville, and M. 0. Morris, of Mt. Vernon, for appellant.

Everett Reeves and N. C. Hawkins, both of Caruthersville, and J. E. Duncan, of Hayti, for respondents.

BRADLEY, J.

We transferred this cause to the Supreme Court on the ground, as we believed, that we had no jurisdiction. State ex rel. Hazel et al. v. Watkins, 227 S. W. 1059. The Supreme Court retransferred, holding that jurisdiction is here. State ex rel. Hazel et al. v. Watkins, 245 S. W. 1059.

The cause is in mandamus to compel a justice of the peace to grant a change of venue in a criminal case. The alternative writ was granted by the judge of the circuit court in vacation. Respondent below, appellant here, made return. To this return relators demurred. The demurrer was sustained, and, appellant refusing to further plead, peremptory writ issued, and respondent below appealed.

April 6, 1920, an affidavit was filed before appellant justice of the peace for a state warrant, in which affidavit relators were charged with a felony. The warrant issued, and relators were arrested, and gave bond for their appearance before appellant justice for preliminary hearing. In due time relators filed their affidavit for change of venue. In their affidavit for change of venue relators charge' 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."

There were four justices of the peace in Little Prairie township. The affidavit for a change of venue went against three of these justices. Unless the justice before whom the cause was pending sent it to the only remaining justice in the township not disqualified by the affidavit, then the cause, of necessity, would have gone out of the township. The justice before whom the cause was pending, appellant here, declined to send it to the only remaining not disqualified justice, but according to his return, made an order granting the change of venue, and further ordered that the cause be sent to G. G. Bowen, a justice of the peace in Cooter township. The return further recited that the orders made relative to the change of venue were made prior to the institution of this cause, and before the issuance or service of the alternative writ. It is further stated in the return that the files and transcript were being held by the justice pending the orders of the circuit court in the cause now here.

As we view this case we have two questions for disposition: (1) Will mandamus lie? (2) Under what is now section 3775, R. S. 1919, should the cause have gone to the justice of the peace in Little Prairie township not disqualified by the affidavit? We will dispose of these questions in the reverse order. The provision allowing one additional justice under what is now section 2688, R. S. 1919, in case there is an incorporated town or city in the township having over 2,000 inhabitants, was added in 1868. Laws 1868, p. 60. The five-mile provision was added in 1877. Laws 1877, p. 282. The statute allowing a change of venue from a justice of the peace was passed in 1879. Section 2039 et seq., R. S. 1879. It appears, therefore, that, when the statute was passed allowing a change of venue from a justice of the peace that at that time there were provisions by which a township might have in it as many as four justices of the peace. Section 2042, R. S. 1879, made the section applicable to change of venue in misdemeanors also applicable to change of venue in felony preliminaries, and such has been the law ever since. See section 3777, R. S. 1919. Section 2039, 3. S. 1879, provided for the affidavit, etc., for the change. This section has remained without material change. Section 2040, It. S. 1879, provided that, if an affidavit be filed, the change of venue must be allowed, and, if against the justice, that the justice must immediately transmit all of the original papers and a transcript of his docket entries "to the next nearest justice in the township." Under that statute a defendant could disqualify but one justice. This statute was amended in 1891, Laws 1891, pp. 120, 121. The amended statute has remained unchanged, and is now section 3775, R. S. 1919, and provides that, if the affidavit be filed against the justice, the change of venue must be allowed, and the justice must immediately transmit all the original papers and a transcript of his docket entries "to the next nearest justice in the township, if there be one, unless the party asking for a change of venue shall, in his affidavit," disqualify the other justice; "then to a justice in some other township in the county."

It is contended by appellant that the defendants could not disqualify more than two justices by their affidavit, viz. the justice before whom the cause was pending and the next nearest justice, and that the attempted disqualification of the third one should be considered as surplusage in the affidavit, and that, under what is now section 3775 and the affidavit it was his plain duty to send the cause to a justice in some other township in the county. The return recites, and such allegation is admitted by the demurrer, that Burrus was the next nearest justice. The affidavit, therefore, disqualified the justice before whom the cause was pending, and also the next nearest justice, and attempted to disqualify a third justice.

It is undoubtedly the policy of the law to have a misdemeanor tried in the township, if before a justice of the peace, where the offense is committed. We are, it is true, dealing with change of venue question growing out of a charge for a felony; but, as we have seen, section 3777, R. S. 1919, makes the law applicable to a change of venue in a misdemeanor before a justice of the peace, also applicable to a change of venue in a preliminary on a felony charge. Hence we shall, and should, proceed as...