| Mo. | Oct 15, 1891
Lead Opinion
Emanuel Bedard' was, on proper process, arrested upon a charge of felony and taken before the St. Louis court of criminal correction for preliminary examination, in June, 1891. On the twenty-sixth day of that month he filed an affidavit, supported by two persons, to the effect that James R. Claiborne, judge of said court, was so prejudicéd against relator that he could not have a fair and impartial trial before him and applied for the election of a special judge. This application being overruled, relator made another affidavit to the same effect, and asked to have the case sent to some justice of the peace in the city of St. Louis for hearing and determination. This also being overruled, the court, Judge Claiborne presiding, tried the case, and held relator to answer an indictment that might be preferred against him for the offense charged, and, upon his failure to enter into recognizance in the sum of $300, he was imprisoned in jail, upon a warrant of commitment issued from said court dated June 30, 1891, to await the action of the grand jury. Relator now seeks in this proceeding to be released from such imprisonment.
Two questions arise for decision herein : First. Did the relator have a legal right to a change of venue from the St. Louis court of criminal correction upon the filing of the affidavits above named % Second,. Is the writ of habeas corpus the proper remedy in a case of this character %
Section 4303 of the criminal code provides that “the provisions of this code, applicable to the circuit court and the judges thereof, shall also be applicable to any other court of record exercising criminal jurisdiction, and the judges thereof, in all cases when no other or different provision is made by law for the government and control of such courts or judges.” . There being no provision, in the statute establishing the court of criminal correction, for a change of venue from that court on account of the prejudice of the judge, and it being a court of record, this section extends the provisions of the criminal code to it. Let us examine these provisions, then, and see whether Judge Claiborne should have ordered the election of a special judge or called in another regular judge to conduct the preliminary examination in the case.
The constitution of Missouri provides that ‘ ‘ in all criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel.” It will hardly be contended, we presume, that the legislature would have the right to pass a law prohibiting the accused from appearing and defending in person and by attorney in a preliminary examination on the ground that it was not “a criminal prosecution” within the meaning of this constitutional provision. A preliminary examination from its inception to its close is carried on in the name of the state, and its object is to detect crime and the criminal. In State v. Williams, 34 La. Ann. 1198, the supreme court of Louisiana says: “Under our system of criminal law, a prosecution has several phases or steps of proceeding ; the first being usually an affidavit or charge : next, a warrant of arrest and so on through the hands of the committing magistrate whose committal transfers the prosecution to the proper criminal court, where it undergoes the other phases of presentment, arraignment, trial and conviction or acquittal
That the preliminary examination before the committing magistrate is a criminal prosecution is conceded, without argument, by this court, in the opinion of the majority of the court, and the dissenting opinion of Judge Ryland in the case of State v. McO’ Blenis, 24 Mo. 402" court="Mo." date_filed="1857-03-15" href="https://app.midpage.ai/document/state-v-mcoblenis-8000019?utm_source=webapp" opinion_id="8000019">24 Mo. 402. This identical question was involved in that case, and the opinions therein delivered are able, exhaustive and cogent in a marked degree. Mr. Wright, one of Missouri’s most distinguished advocates, concedes that a preliminary examination is a criminal prosecution, though the proposition he contended for would have been relieved of much difficulty, if he could have plausibly ' avoided making this concession. And Judge Ryland, whose dissenting opinion in the case, is unsurpassed in legal literature for its research and philosophic treatment of the questions discussed, says: “The words are, ‘in all criminal prosecutions the accused has the right to meet the witnesses against him face to face.’ Now if the words in question do require, as no one has yet denied, that the witness and the prisoner shall confront each other, and, if that was necessary to the constitutional validity of the testimony taken before the justice, it could not be dispensed with on the trial before the traverse jury, unless it could be shown that there was no criminal prosecution going on there. * * * The meaning on the contrary appears to be,
A preliminary examination is not only carried on in the name of the state to detect crime and the criminal, but the direct effect of it may be to deprive the accused of his liberty, and hence the dearest rights of the citizen are involved. Our legislature has guarded the rights of the people from unjust invasion by providing for a change of venue from a justice of the peace upon application of the accused supported by affidavit in preliminary examination cases. R. S. 1889, sec. 4346. So that, if the St. Louis court of criminal correction is exempt from the operation of all statutes on the subject of change of venue, it is the only one in the state that is so exempt, and being so exempt the statute authorizing it to hear preliminary examinations and commit parties found guilty of crimes, after the filing of proper affidavits of prejudice, would be in
In the case of State v. Hayes, 81 Mo. 544, this court said: “A law authorizing changes of venue generally throughout the state, but exempting the city of St. Louis from its benefits, would be repugnant to section 1 of the fourteenth amendment to the constitution of the United States, which forbids a state to deny to any person the equal protection of the laws.” It is no answer to this proposition that the object of a preliminary examination is not to convict and inflict punishment, but simply to inquire whether a crime has been committed, and, if so, whether the party accused is probably guilty of committing it, for thé result may be not only to harass the party and put him to expense and trouble, but also to incarcerate him in the common jail. Indeed, it would seem that there is more reason for demanding an unprejudiced judge in cases where there is no right of appeal, than in cases where such right exists. The trial judge, whose rulings may be reviewed by an appellate tribunal, cannot, no matter how prejudiced he may be, act as arbitrarily as one whose decision is final. The right to an impartial preliminary examination before an unprejudiced court is a substantial right calculated to affect the accused in his rights of property, liberty and reputation, and, being such, a denial of it to one party in one forum, while granting it to others in other forums, is repugnant not only to constitutional guarantees, but to justice as well.
Mr. Endlich, in his work on the interpretation of statutes, section 178, says : “ A presumption of much importance in this country * * * is that a legislative intent to violate the constitution is never to be assumed, if the language of the statute can be satisfied by a contrary construction. The application of this rule requires that, whenever a statute is susceptible of
Having concluded that a preliminary examination is a “criminal prosecution” within the meaning of section 4174, supra, and that said court is a criminal court, within the meaning of the same section, it follows that the judge of that court had no jurisdiction to hear and determine the issue raised, after the filing of the affidavits against him by the accused, and the subsequent trial and issuance of the writ of commitment werecoram non judice and void. The affidavits rendered him incompetent to hear and try the cause. The only jurisdiction that remained in him after the filing of the affidavits was to make an order for the election of a special judge, or the calling in of another regular judge-to dispose of the case. State v. Bulling, 105 Mo. 204" court="Mo." date_filed="1891-04-15" href="https://app.midpage.ai/document/state-v-bulling-8010125?utm_source=webapp" opinion_id="8010125">105 Mo. 204, and cases cited.
II. The second question is as to the remedy. Section 5378, Revised Statutes, 1889, in relation to writs of habeas corpus, provides that, “if it appears that the prisoner is in custody by virtue of process from any
The relator is entitled to his discharge from imprisonment by virtue of the warrant of commitment from •the St. Louis court of criminal correction in the case heretofore mentioned, and the order will be that he be discharged from custody under that warrant, but be remanded to be dealt with according to the views expressed herein.
Concurrence Opinion
concur in the result, but on the ground that the judge of the St. Louis court of criminal correction, in preliminary examinations for felonies, does not act as a court, but as an examining magistrate, and that section 4346, and articles 1 and 2, of chapter 48, Revised Statutes, 1889, apply to him when acting in that capacity, and, hence, he ought to have sent the case to some justice of the peace of the city of St. Louis to be disposed of instead of ordering the election of a special judge, etc. We all agree, however, that that court acts as a court, in the disposition of misdemeanor cases upon information and that sections 4174, 4175, 4176, 4177 and 4178, Revised Statutes, 1889, govern it in such cases, when application is made for change of venue on account of the prejudice of the judge.