The State ex rel. Renfro v. Wear
| Decision Date | 02 July 1895 |
| Citation | 31 S.W. 608,129 Mo. 619 |
| Parties | The State ex rel. Renfro, Prosecuting Attorney, v. Wear, Judge, et al |
| Court | Missouri Supreme Court |
Peremptory writ awarded.
R. F Walker, Attorney General, for relator.
Given Campbell for respondents.
OPINION
In Banc.
Prohibition.
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 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. Sections 3247 and 4174, R.S. 1889.
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 eighth 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 fourth day of May, A. D. 1895, at 10 o'clock A. M., at which time Hon. 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 8, and that Judge Wear took his seat on the bench; that on said fourth 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 the 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 law of this state in the trial of said cause.
I. 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 and 4178, Revised Statutes, 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 that court, alike call for the most considerate judgment.
The convention which framed the 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 the office. By section 29, article 6, of the constitution it is provided: "If there be a vacancy in the office of judge of any circuit, or if the judge be sick, absent, or from any cause unable to hold any term or part of term of court, in any county in his circuit, such term or part of term of court may be held by a judge of any other circuit; and at the request of the judge of any circuit, any term of court or part of term in his circuit may be held by the judge of any other circuit, and in all such cases, or in any case where the judge can not preside, the general assembly shall make such additional provisions for holding court as may be found necessary." In obedience to this command of the constitution the legislature enacted section 4174, Revised Statutes, 1889, which contains, among others, this provision: "When any indictment or criminal prosecution shall be pending in any circuit or criminal court, the judge of said court shall be deemed incompetent to hear and try said cause in either of the following cases: First, when the judge of the court in which such cause is pending is near of kin to the defendant by blood or marriage," etc.
By section 4178 it is further provided, that, "if in any case the judge shall be incompetent to sit for any of the causes mentioned in section 4174, and no suitable person to try the case will serve when elected as such special judge, or if, in the opinion of the judge of said court no competent or suitable person can or will be elected as such special judge, he need not order such election, but may, in either case, set the cause down for trial on some day of the term, or on some day as early as practicable in vacation, and 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 and hold the court at the time appointed for the trial of said cause; and he...
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