State v. Wear
| Decision Date | 18 June 1895 |
| Parties | STATE ex rel. RENFRO, Pros. Atty., v. WEAR, Judge, et al. |
| Court | Missouri Supreme Court |
1. Const. art. 6, § 29, declares that, where the judge of any circuit is unable to hold court, it may, at his request, be held by the judge of any other circuit. Rev. St. 1889, § 4178, provides that if a judge shall be incompetent to sit, and no suitable person to try the case will serve, when elected as special judge, or if, in the opinion of the judge, no competent person can be elected as special judge, he need not order such election, but may request the judge of some other circuit to try the case, who shall have all the powers of a circuit judge at a regular term of said court. Held, that where a judge who was disqualified, under section 4174, from trying a prosecution of his son, without ordering an election, requested the judge of another circuit to try the case, and such other judge was present on the day named, he had power to proceed with the case, and the subsequent election of a special judge was void.
2. It is not necessary that the record of a court of general jurisdiction should recite the fact that the judge thereof was of opinion that no suitable person could be elected special judge before he requested the judge of another district to try a cause which he was disqualified from trying.
3. Where a judge of another circuit responds to a request to try a cause wherein the regular judge was disqualified, his jurisdiction attaches from the time of his appearance to the final determination of the cause.
In banc. Application, on the relation of W. E. Renfro, prosecuting attorney, for a writ of prohibition to prevent John G. Wear and G. A. Standard from exercising any authority, as judge or special judge of the circuit court of Butler county, in the prosecution of Charles E. Wear. Writ granted.
This is an application for a writ of prohibition against Hon. John G. Wear, judge of the Twenty-Second judicial circuit of this state, and G. A. Standard, a member of the bar of Butler county, to prevent them, and each of them, from exercising, or attempting further to exercise, any authority, as judge or special judge of the circuit court of Butler county, in the prosecution of Charles E. Wear, a son of said John G. Wear, upon an indictment for murder preferred by the grand jury for said county. The cause stands for decision upon the pleadings and admissions therein made. The facts are as follows: Hon. John G. Wear is the duly elected, qualified, and acting judge of the Twenty-Second judicial circuit, and ex officio judge of the circuit court of Butler county. Charles E. Wear is the son of Judge Wear. At the regular November term for the year 1894 of the circuit court of Butler county, the grand jury of said county returned into said circuit court an indictment for murder in the first degree against said Charles E. Wear. The said court did not direct or order any capias, writ, or other process for the apprehension of said Charles E. Wear upon said indictment, nor had any been issued by the clerk of the said court pending the several adjournments of said court, up to and including May 6, 1895, when the application for the provisional order or rule herein was made to one of the judges of this court, and the said defendant is still at liberty. By the laws of this state, Judge Wear was disqualified, by reason of his relationship, for the trial of said Charles E. Wear upon said indictment. Rev. St. 1889, §§ 3247, 4174. After the finding of the indictment, in February, no steps were taken in said cause, but Judge Wear adjourned his court until March 25, 1895; and on that day said court was again convened, and adjourned until April 8, 1895. On the 8th of April, Judge Wear presiding, the said Butler circuit court made, and caused to be entered of record, the following order: "Ordered that this court do now adjourn until Saturday, the 4th day of May, A. D. 1895, at 10 o'clock a. m., at which time Honorable Henry Riley, judge of the Twenty-Eighth judicial district, be requested to sit in such cause as this court may be disqualified to sit." It then appears that on May 4, 1895, said circuit court convened, according to the adjournment of April 8th, and that Judge Wear took his seat on the bench; that on said 4th day of May the Honorable Henry Riley, the judge of the Twenty-Eighth judicial circuit, in obedience to the request of said Butler circuit court, appeared before the bar of said court in the forenoon of that day, and, having waited until about 4 o'clock in the afternoon of that day for Judge Wear to vacate the bench, formally announced to Judge Wear that he, the said Henry Riley, judge as aforesaid, was present in pursuance of the order requesting him to assume and discharge the duties of the office of circuit judge of said county in the conduct of the case of the state of Missouri against Charles E. Wear, or such other causes as the said John G. Wear might be disqualified from trying; that Judge Wear, sitting in the seat usually occupied by the judge of said court, declined and refused to permit said Riley to assume the duties of circuit judge, to which he had been called, and which he then and there offered to perform, but arbitrarily convened and at once adjourned said court until May 6, 1895. It further appears that relator and other counsel for the state were present, and protested against the refusal of Judge Wear to permit Judge Riley to assume the duties of circuit judge of said county to try said cause. It further appears that on May 6, 1895, a session of said court was held, and G. A. Standard was elected special judge in the case of the state of Missouri against Charles E. Wear aforesaid; that relator, the prosecuting attorney of said county, protested and excepted to the election of said Standard, as being without authority of law, but said Standard thereupon took the oath of office, and proceeded to assume the duties of circuit judge for the trial of said Charles E. Wear; whereupon the prosecuting attorney applied to this court to prohibit said John G. Wear and said G. A. Standard from further taking cognizance of said cause and obstructing Judge Riley in the discharge of his duties under the laws of this state in the trial of said cause.
The Attorney General, for relator. Givan Campbell, for respondents.
GANTT, P. J. (after stating the facts).
It was urged by counsel, in his argument for Judge Wear, that the facts do not show that Judge Wear had exercised the power conferred upon him by sections 4175, 4177, Rev. St. 1889, by ordering an election of a special judge as therein provided, nor does it appear that no suitable person would serve, if elected as such special judge, nor that "in the opinion of the said court no competent or suitable person could or would be elected as special judge." Waiving all discussion of the consistency of such an argument when made by the judge of the court who requested Judge Riley to hold the Butler circuit court for him, we proceed at once to examination of the important question of Judge Riley's authority to preside in the trial of Charles E. Wear, on the charge of murder, in the circuit court of Butler county. The gravity of the charge, and the exceeding importance of preserving the dignity of the court, alike call for the most considerate judgment.
The convention which framed our constitution anticipated that there would often occur occasions in which it would be manifestly improper or impossible for the regularly elected judge to sit in cases docketed in the court over which he was chosen to preside, and it therefore took the precaution of providing for filling...
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