The State v. Wear

• Citation: 46 S.W. 1099,145 Mo. 162
• Parties: The State v. Wear, Appellant
• Decision Date: 25 June 1898
• Court: Missouri Supreme Court

46 S.W. 1099

145 Mo. 162

The State v. Wear, Appellant

Supreme Court of Missouri

June 25, 1898

Appeal from Butler Circuit Court. -- Hon. Henry C. Riley, Judge.

Reversed and defendant discharged.

Louis F. Dinning and Henry N. Phillips for appellant.

(1) The circuit court had jurisdiction to render the judgment of discharge; it also had jurisdiction of the defendant, and said judgment can not be attacked collaterally. Yates v Johnson, 87 Mo. 213; Forder v. Davis, 38 Mo 108; Pentz v. Kenster, 41 Mo. 447; Gray v Bowles, 74 Mo. 419; Karnes v. Alexander, 92 Mo. 660; Carpenter v. King, 42 Mo. 219; State v. Evans, 83 Mo. 319; Lewis v. Gray, 66 Mo. 614; Henry v. McKerdie, 78 Mo. 416; Scott v. Crews, 72 Mo. 263; State v. Weathersby, 45 Mo. 17; Jeffries v. Wright, 51 Mo. 220; Burke v. City of Kansas, 118 Mo. 309; State ex rel. v. Smith, 104 Mo. 419; State ex rel. v. Neville, 110 Mo. 345; Musick v. Railroad, 114 Mo. 309; Leonard v. Sparks, 117 Mo. 103. A number of the decisions above quoted were rendered by the circuit court and in every instance the court was exercising statutory jurisdiction and enforcing statutory rights. (2) Any court having once acquired jurisdiction over the subject-matter and person never loses it by any possible error it may commit. State to use Perry v. Towl, 48 Mo. 148. The test of jurisdiction is whether the tribunal has power to enter upon inquiry and not whether its conclusions in the course were right or wrong. Colton v. Beardsley, 38 Barb. 29; Vanfleth on Collateral Attack, pp. 82, 83, 84, 85; Tallman v. McCarthy, 11 Wis. 401. (3) The contention that the record of the circuit court had to show the three continuances, or that three terms had passed without a trial, and unless the record showed these facts the circuit court had no jurisdiction to render the judgment of discharge, is not well taken. Tallman v. McCarthy, 11 Wis. 401. (4) The Attorney-General seems to think that all that is written in the record books of a court in a given case is a part of the record proper. This contention is erroneous and can not find support in a single authority which we have been able to find. The file, comprising the petition, the summons and all subsequent pleadings, including the verdict and judgment, constitutes the "judgment roll" and everything else to become a part of the record must be made such by a bill of exceptions, and the records of the circuit court, which counsel for the State claim show that the testimony was not sufficient to authorize the court to render its judgment of discharge, form no part of the record proper; therefore if the State had been entitled to an appeal from the judgment of discharge, any entries in the record books of the Dunklin county circuit court, except as above stated, in order to become a part of the record proper, would have to be made so by a bill of exceptions. State ex rel. v. Scott, 104 Mo. 31; Land Co. v. Bretz, 125 Mo. 423; Pardon v. Dwire, 23 Ill. 572. (5) Counsel for the State assert that "the prosecuting attorney had the right to enter a nolle prosequi at any time before the jury was sworn." This I admit with this qualification: that he had a right to enter a nolle prosequi with the consent of the court. Even if I were to concede that he had a right to enter a nolle prosequi without the consent of the court, it would not follow that when he asked leave to enter a nolle prosequi, and the same was refused by the court, that the court thereby lost its jurisdiction over the defendant and over the indictment. Ex parte Donaldson, 44 Mo. 154; R. S. 1889, sec. 4217; State v. Nutting, 39 Me. 361.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) When the defendant is on bail and seeks to be discharged under this statute, he must, in order that a term of court shall count, appear and demand a trial at such term, and if the record does not show that he did so, it will be presumed that the case was continued by the consent of the State and the defendant. Watson v. People, 27 Ill.App. 495; Gallagher v. People, 88 Ill. 335; Stewart v. State, 13 Ark. 720; Cooper v. Sunderland, 66 Am. Dec. 61; Denning v. Corwin, 11 Wend. 647; Jackson v. Estey, 7 Wend. 148; Striker v. Kelly, 7 Hill, 11; Thatcher v. Powell, 6 Wheat. 119; Gunn v. Howell, 27 Ala. 663; Bates v. Bank, 8 Port, 99; Ford v. Bank, 9 Port, 471; Andrews v. Bank, 10 Ala. 375. (2) Where the record does not show that the continuances were had on the application of the State, or that the defendant was present and ready for trial, and demanding it, the court has no authority to order the defendant's discharge. Gallagher v. People, 88 Ill. 335; State v. Stewart, 13 Ark. 720. (3) The subject-matter in issue, passed upon by the circuit court in entering the judgment in question, was the discharge of the defendant by reason of the lapse of three terms of court and no trial, not occasioned by the fault of the defendant and defendant demanding a trial. Stewart v. State, 13 Ark. 721; 4 Tex.App. 426; Nixon v. State, 2 Smed & Mar. 497; 27 Ill.App. 495; 88 Ill. 335. The "subject-matter," when reference is made to questions of jurisdiction, is defined to mean: "The nature of the cause of action and the relief sought." Blair v. Hope, 105 Mo. 93. The definition given by this court makes the distinction very clear between the power to commence to determine a question, -- to decide a question, -- and the determination or decision thereof after the right attaches between the power to begin to decide, and the power to decide. Cooper v. Sunderland, 66 Am. Dec. 52; Gunn v. Howell, 27 Ala. 663; Gunn v. Howell, 62 Am. Dec. 785. (4) For the purpose of the exercise of this power to discharge the facts necessary to give the jurisdiction must first be shown and no presumption will arise in favor of jurisdiction until those facts are shown. Horan v. Wahrenberger, 58 Am. Dec. 145; Cooper v. Sunderland, 66 Am. Dec. 52. The general rule also prevails in this State that the question of jurisdiction must be tried by the whole record. Milner v. Shipley, 94 Mo. 106. So here the recitals in the judgment must yield to the recitals in the record if there is any conflict between them. Cloud v. Inhabitants Peirce City, 86 Mo. 336; Freeman on Judg., sec. 125; Ex parte Donaldson, 44 Mo. 149. (5) If the infirmity appears in the record the judgment may be disregarded as a nullity whenever and wherever it is encountered in any proceeding, direct or collateral. Woods v. Bryan, 44 Am. St. Rep. 688; Morrill v. Morrill, 23 Am. St. Rep. 95 and note; 47 Am. Dec. 41; 9 Tex. 313; 66 Am. Dec. 52; Hatch v. Ferguson, 68 F. 45; Seamster v. Blackstock, 83 Va. 232; Windsor v. McNeigle, 93 U.S. 282. (6) The record is always open to contradict or impeach itself whether the attack be direct or collateral. 1 Black on Judg., secs. 273, 276 and 278; Pardon v. Dwire, 23 Ill. 572; Starbuck v. Murray, 5 Wend. 148. (7) The prosecuting attorney had the right to enter a nolle prosequi in the case at any time before the jury was sworn. Com. v. Tuck, 20 Pick. 356; State v. Tufts, 556 N.H. 138; Com. v. Knapp, 10 Pick. 477; 1 Abbot's Prac., p. 121; State v. Roe, 12 Vt. 109. (8) When the prosecution was discontinued by the prosecuting attorney appearing in court and making the request that a nolle prosequi be entered, no motions or proceedings could be had in the case or entertained by the court, and no order or judgment could be entered therein, the nolle prosequi being an end to the prosecution, so far as that particular indictment is concerned. Fitnam's Trial Procedure, sec. 543; Cooper v. Reynolds, 10 Wall. 308; Seamster v. Blackstock, 83 Va. 232.

Burgess, J. Brace, Williams and Marshall, JJ., concur; Gantt, C. J., and Robinson, J., dissent; Sherwood, J., not sitting.

OPINION

In Banc.

Burgess J. --

From a conviction in the circuit court of Butler county, of murder in the second degree and the fixing his punishment at thirty-five years in the penitentiary, under an indictment theretofore returned against him by the grand jury of said county, for shooting to death with a pistol one Charles E. Lael at said county on the night of April 9, 1892, defendant appeals.

The homicide occurred at the city of Poplar Bluff, which is the end of a division on the Iron Mountain Railroad which passes through that city. Train crews are made up there for outgoing trains. The deceased, Charles E. Lael, was at the time in the service of the railway company as night-caller. It was a part of his duty to go to the residence or boarding places of the various members of the crew that were to go out, and awake and notify them to report at the telegraph office in time to take charge of the train.

On his return from calling a member of a crew, defendant was standing on one of the streets, having in his hands a crutch and cane, and as deceased passed him defendant struck him with one of them on the leg, when deceased pushed defendant off the sidewalk, which was a little higher than the street into the mud, which angered him. Deceased then ran into a saloon some distance away into which Wear followed him, threatening to whip him. Lael left the saloon, and ran to the roundhouse to his headquarters. Wear applied to two different persons for a pistol but did not succeed in getting one from either of them. He however hunted for deceased, and remarked to one witness that he was looking for Ed. Lael and said, "I will get him before I quit." Perhaps an hour after Lael arrived at the roundhouse he went to where he first came in contact with Wear on the sidewalk to hunt for his hat which he lost there at that time, and upon his return to the roundhouse, Wear stepped from behind a car and said to Lael, "Are you the son-of-a-bitch that hit me?" and at once fired the shot that...