State v. Blair

53 Vt. 24 | Vt. | 1880

The opinion of the court was delivered by

Royce, J.

The only exception now insisted upon, is to the refusal of the court, to set aside the verdict, on account of the absence of the assistant judges, under the circumstances, and for the reasons stated in the agreed statement of facts. Judge Riford (one of said assistant judges) did not sit in the cause on account of his being a witness, and left town before Judge Redfield commenced his charge to the jury. Judge Martin (the other assistant judge) sat in the cause until the charge of the presiding judge to the jury was about one-half through, and then left the courthouse, on account of pain and sickness, and went to his home in Plain-field, about ten miles from Montpelier, and did not return until after the jury had returned their verdict. The County Courts consist of one judge of the Supreme Court and two assistant judges, appointed for the county in which the court is to be held, any two of whom shall be a quorum ; c. 30, s. 22, Gen. Sts; and the 23d section of the same chapter provides that one judge of the County Court may try and determine any cause pending in such court, when the other judges are legally disqualified to act on the trial of such cause. When Judge Riford left, there was a quorum of the court present, and from what appears, it is evident that the respondents assented to his absenting himself, and to his declining to participate in the trial. Was Judge Martin so disqualified that the prehiding judge had the legal right to go on with the trial, and do what the case shows was done by him after Judge Martin left ? By the enactment of the statute constituting the County Courts, it was intended that all of the judges constituting such courts should be present at its sessions, and participate in its business. But there was a necessity for making some provision for the trial of causes, in cases where all the judges could not participate in the trial; and to meet such necessity, the provision above recited was made. The ordinary signification of the expression, legal disqualification, is, that it results from some interest in the subject-matter, or from relationship to the parties in interest. It was the evident intention of the legislature to provide a court that should be legally competent to try causes, when the other members of the court were unable to participate in the trial. The inability may result from physical causes, as well as from interest, or relationship ; and this is the sense in which the expression, legal disqualification, as it occurs in the statute, should be construed. A physical disability is such a disqualification ; and unless such a construction is given to the statute, if the assistant judges are disabled by disease, from attending at the sessions of the County Courts, the courts would be obliged to stop, until they were restored to health, or others were appointed or elected. And when the assistant judge (as was done in this case) remains in court, and participates in the trial, as long as he could be of any service to the respondents, or the State, and just before the trial is concluded, is obliged to leave court, on account of physical disability, the trial must be suspended or commence de novo. What was done by the presiding judge in this case, after the retirement of Judge Martin, pertained to his duty as chief judge, and would have been done in the same way if Judge Martin had been present. So that upon both grounds, we hold that the exception was not well taken, and that the respondents take nothing by their exceptions.