The State v. Gillham

• Citation: 74 S.W. 859,174 Mo. 671
• Parties: THE STATE v. GILLHAM, Appellant
• Decision Date: 19 May 1903
• Court: United States State Supreme Court of Missouri

74 S.W. 859

174 Mo. 671

THE STATE v. GILLHAM, Appellant

Supreme Court of Missouri, Second Division

May 19, 1903

Transferred from St. Louis Court of Appeals.

Reversed and remanded.

Thomas J. Rowe and Paxon & Clark for appellant.

Judge McElhinney had no jurisdiction to try this cause, and any judgment entered under his supervision has no more validity than one rendered in a moot court of any law school. Sec 2597, R. S. 1899; State v. Shipman, 93 Mo. 157; State v. Bulling, 105 Mo. 204; Ex parte Bedard, 106 Mo. 616; State v. Silva, 130 Mo. 457; State v Hudspeth, 159 Mo. 210; State ex rel. v. Flournoy, 160 Mo. 332; State v. Goddard, 162 Mo. 221; State v. Downs, 164 Mo. 471; Cunningham v. Railroad, 165 Mo. 270; State ex rel. v. Perkins, 139 Mo. 106; State ex inf. v. Lund, 167 Mo. 228.

Edward C. Crow, Attorney-General, for the State.

OPINION

FOX, J.

This cause originated in the St. Louis Court of Criminal Correction. The defendant was convicted and from the judgment of conviction he appealed to the St. Louis Court of Appeals. At the October term, 1902, of the Court of Appeals, the judgment of the trial court was affirmed. One of the judges of the court dissented from the opinion affirming the judgment, for the reason, as disclosed by the record, that the conclusion reached by the majority of the court was in conflict with the decisions of the Supreme Court in State v. Silva, 130 Mo. 440, 32 S.W. 1007, and State v. Hudspeth, 159 Mo. 178, 60 S.W. 136; hence, this cause was certified to this court. We will, for the purpose of disposing of the controverted questions involved in this case, adopt the statement made by the St. Louis Court of Appeals.

"On December 5, 1900, an information was filed against the appellant in the St. Louis Court of Criminal Correction charging him with a criminal offense. Subsequently an amended information was filed. On the said fifth day of December, the date of the filing of the first information, Honorable Willis H. Clark, the regular judge of said court, voluntarily disqualified himself to try the cause against the appellant and called in Judge E. M. Hughes of the Eleventh judicial circuit to try it. As Judge Hughes failed and refused to sit, Judge Clark called in Judge Neville of the Twenty-third judicial circuit, the appellant objecting and excepting to that order. Afterwards on February 28, 1901, affidavits were filed by the appellant disqualifying Judge Neville; whereupon on the same day that judge made an order calling in Hon. J. W. McElhinney of the Thirteenth judicial circuit to sit in the case, to which order the appellant at the time objected and excepted. The cause was tried before Judge McElhinney, the defendant found guilty and his punishment assessed at $ 200, from which judgment he appealed."

Appellant insists, first, that Judge Clark, after he had, by proper entry of record, disqualified himself from presiding in the trial of said cause, had no authority to invite Judge Neville to try said cause. This contention is urged on the theory that there must first be an election held, and a refusal of the special judge to act, in order to confer power upon the regular judge to invite the judge of another circuit to preside in the trial of the cause.

There is no merit in this contention, even under sections 4174 to 4178, Revised Statutes 1889, where full provisions were made for the election of a special judge. This court in the trial of State v. Newsum, 129 Mo. 154, 31 S.W. 605, very clearly announced the rule as applicable to those sections then in force. It said: "Nor is it necessary that the reason for requesting the services of the judge of another circuit, be shown by the record or otherwise, as the presumption will be indulged that the request was in obedience to the statute authorizing him to do so."

The law as applicable to the election of special judges, of 1889, was materially amended in 1895, and under section 2595, Revised Statutes 1899, as amended, it is apparent that the contention of appellant, in this respect, can not be maintained. Section 2595, which was in force at the time of this trial, provides:

"Whenever, in any criminal cause, the defendant shall make application under oath, and supported by the affidavit of two or more reputable persons, not of kin or counsel for the defendant, to the truth of the allegations in such application for a change of venue, for any of the reasons stated in the next preceding section, it shall be lawful for the judge to hear and determine such application; or whenever it shall be within the knowledge of the court or judge that any of the causes enumerated which disqualify him in any case exist, the defendant and prosecuting attorney may by agreement in writing, with the concurrence and approval of the court, elect some attorney at law, who possesses all the qualifications of a judge of the circuit court, as special judge in said cause: provided, nothing in this act shall be so construed as to authorize the selection of any attorney as special judge who is near of kin to the defendant or judge of such court by blood or marriage, or when the offense is alleged to have been committed against the person or property of said attorney, or some person near of kin to him, or when said attorney is in anywise interested or prejudiced, or shall have been of counsel in the case."

It will be observed that this section, while it uses the term election of a special judge, yet the terms of the section do not constitute an election. It merely confers upon the defendant and prosecuting attorney, with the approval of the judge, the right to agree upon some one to try the case. This was a right that they could exercise or fail to exercise. The statute is not mandatory; they could not be compelled to avail themselves of this privilege. In the case of State v. Wear, 145 Mo. 162, 46 S.W. 1099, Burgess, J., discussing section 4177, Revised Statutes 1889, very similar to this section now under discussion, said: "The defendant and prosecuting attorney could avail themselves of it or not, just as they saw proper, and as the record does not show to the contrary, the presumption will be indulged that it was their own fault that they did not do so, and that they in fact waived the privilege."

With these views, we are clearly of the opinion that Judge Clark had the authority to invite Judge Neville to try said cause.

This brings us to the last and most vital question in this case. The record in this cause discloses that Judge Neville responded to the request to try this cause; but it further appears that defendant, by application in due form, disqualified him from presiding in the trial of the case. Whereupon, on the same day, Judge Neville made an order calling in Judge McElhinney, judge of the Thirteenth circuit, to try said cause. To the making of this order, objections and exceptions were duly preserved. It is earnestly urged that Judge Neville had no power or authority to make the order requesting Judge McElhinney to try this case. This is the question that confronts us and it is important, for it is the first time that this precise question has been presented to this court for review.

Under the law, courts of general jurisdiction have certain inherent powers, but this particular power to request the judge of another circuit to try a case, does not fall within the inherent power vested either in the court or the judge. This authority must depend for its support absolutely upon the provisions of our statute. The authority for the exercise of the power to request the judge of some other circuit to try the cause is contained in section 2597, Revised Statutes 1899, which provides, so far as pertinent to the question involved:

"If, in any case, the judge shall be incompetent to sit for any of the causes mentioned in section 2594, and no person to try the case will serve when elected as such special judge, the judge of said court shall, 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 shall, during the trial of said cause possess all the powers and perform all the duties of a circuit judge at a regular term of such court, and may adjourn the case from day to day, or to some other time, as the exigencies of the case may require, and may grant a change of venue in said cause to the circuit court of another county in the same circuit, or to another circuit; and whenever said cause shall be removed to the circuit court of another...