61 P. 394 | Kan. | 1900
The opinion of the court was delivered by
This is an appeal from a judgment of the district court of Hodgeman county sentencing the appellant for the crime of manslaughter in the fourth degree. The homicide occurred in Rush county. A trial was had in that county at the October term for 1898, which resulted in a conviction. From the judgment then pronounced an appeal was taken to this court, and it was reversed and a new trial ordered. (The State v. Start, 60 Kan. 256, 56 Pac. 15.) A trial was again had in Rush county at the October term, 1899, but the jury failed to agree. The record of this
In The State v. Allen, 59 Kan. 758, 54 Pac. 1060, it was held:
“Where a defendant has been placed upon trial on a criminal charge and the jury is duly impaneled and sworn, the court cannot arbitrarily discharge the jury before a verdict is returned ; and a discharge in such case, unless an absolute necessity, and for reasons which are sufficient in law, will operate as an acquittal.
“The essential facts upon which the discharge is based, and the finding of the court thereon, must be entered of record, and unless the record shows the existence of such facts and the decision of the court thereon, and that they constitute sufficient grounds for discharge, the defendant cannot again be put on trial for the same offense.
“A record entry that the jury, not having agreed, is discharged, does not show inability to agree, or any necessity for a discharge.”
The facts of that case and of this one are identical in effect, and the records of the two cases are very nearly identical in language. No question is raised by the state in this case as to the controlling authority of the one cited. The record of the proceedings of the district court of Rush county at the October term for 1899, as first made up, utterly failed to show any sufficient reason for the discharge of the jury. Under the decision in The State v. Allen, supra, the defendant thereupon became entitled to a discharge from custody. The only question, therefore, is, Of what effect were the proceedings in Hodgeman county purporting to amend and correct the record of Rush county? Our decided judgment is that they were of no effect whatever. The constitution of the state declares that “the district courts shall have such juris
“There shall be in each county organized for judicial purposes, a district court, which shall be a court of record, and shall have general original jurisdiction over all matters, both civil and criminal, not otherwise provided by law,” etc. (Gen. Stat. 1897, ch. 85, § 1; Gen. Stat. 1899, §1879.)
“The judges of the district courts, within their respective districts, shall have and exercise such power in vacation or at chambers as may be provided by law, and shall also have power in vacation to hear and determine motions to vacate or modify injunctions, discharge attachments, vacate orders of arrest, and to grant or vacate all necessary interlocutory orders,” etc. (Gen. Stat. 1897, ch. 85, §2; Gen. Stat. 1899, § 1880.)
The first of these statutes confers power on the courts in term time ; the second confers power on the judges at chambers. Elsewhere in the statute may be found provisions which, as to particular matters, confer power either on the court or on the judge, but none of them confers the power that in this case was exercised by the judge of the district court of Hodge-man county, either as a judge or as a court. It will be borne in mind that the order in question was made by the district court of Hodgeman county as to a case in the district court of Rush county, or rather as to a case which had been in the last-named county. Now, while these two counties are in the same judicial district, and the district courts of both of the counties are presided over by the same judge, yet they are not the same courts. They are separate and independent —as much so as though they were not in the same
Nor, viewing the judge making the order at his chambers, and the order as one made in the vacation of the district court at Rush county, can the authority exercised be upheld. However, the state does not claim that the order was made at chambers in vacation. If such claim were made, it would of necessity have to be brought within the terms of the final clause of section 2 of the statute above quoted, which reads : “And to grant or vacate all necessary interlocutory orders.” But the order in question, if interlocutory in any sense, was not so in the sense which justified the judge at chambers to make it. It was an order vacating the entry of one judgment and directing the entry of another, and such kind of order can only be made by the court. There are no statutory provisions conferring power upon the district courts to vacate or amend their orders and judgments which, by their terms, are made applicable in criminal cases, and, of course, no statutory power in the judges at
“The powers of judges at chambers are usually regulated by statute or rules of court, and the general doctrine is that all judicial business must be transacted in court, whether there be any express direction to that effect or not; and that such business as may be transacted out of court is exceptional and must find its express authority in statute.” (4 Encyc. Pl. & Pr. 837. See, also, In re Barnhouse, 60 Kan. 849, 58 Pac. 480.)
"When a law authorizes or contemplates the doing of a judicial act, it is and must be understood to mean that the court, in term time, may or must do it, and not the judge in vacation, unless expressly conferred by the words of the law.” (William S. Reyburn agt. Bassett and Brackett, McCahon, [Kan. Ter.] 86.)
But we are not without authority upon the precise question. In the case of Devine v. The People, 100 Ill. 290, an order of court improvidently settling an erroneous bill of exceptions in a criminal case was made. Upon the discovery of that fact the judge who tried the case settled a supplemental bill of exceptions at his chambers in another county, so as to correct the errors of the original bill. The supreme court refused to consider the supplemental bill, saying:
“It is a well-recognized principle that judges can exercise no judicial functions in vacation except such as they are specially'authorized to do by statute. It is true the mere settling and signing of a bill of exceptions may not be the exercise of judicial power, yet, when once it is signed, sealed and filed in the proper office, it becomes as much a part of the record as an indictment or declaration when so filed, and, like other portions of the record, it imports a verity, and no plea or averment will be admitted which questions the truth of what it imports. If what purports to be a record has been so made up by the clerk or other official as to not speak the real facts, it must be amended so as to' conform to them, and this' can only be done by the court whose record is sought to be amended, and must, as a general rule, be done on due notice to all such as will be affected by the amendment. It would certainly be competent for the legislature to authorize judges to hear and determine questions of this character in vacation, but we are aware of no statute that authorizes them to do so.”
To the same effect are the cases of Ingram v. Belk et al., 2 Rich. Law (S. C.) 111; Garlington v. Cope
But the order for the amendment of the record must be regarded as erroneous for another reason, which appears to us equally as conclusive as the one above given. Whether regarded as an order made by the district court of Hodgeman county, or by the judge of the district court of Rush county at his chambers' in Hodgeman county, the order was made as to a case which had no existence or status in Rush county, the county in which it was designed to operate. There was no case in Rush county. The case which at one time had been upon the docket in that county had been transferred to another county. After the transfer the case was pending in Hodgeman county, and wholly pending there, and the district court of Hodgeman county had jurisdiction over the defendant only in that county, but the order was made to operate upon the defendant as though he were still in Rush county. Neither the court nor the judge could make an order affecting the rights of the defendant except in the jurisdiction in which his case was triable, or rather could make no order operative within a jurisdiction in which he was not being held for trial. When the venue of a case has been changed from one county to another the court from which the order of removal is made loses jurisdiction over the case, and jurisdiction over it henceforth becomes lodged in the court to which the change has been made. There may be some exceptions to this as a
But, after all, the general principle applicable to this case is one that has been frequently decided in this state, and that is that a court has no power in vacation to render a judgment in a cause; In the case of In re Millington, Petitioner, 24 Kan. 214, it was ruled that judicial proceedings not had at a regular and valid term of the court are void. In the case of Earls v. Earls, 27 Kan. 538, it was held that a judgment of divorce could not be rendered in vacation in a case which had been tried at the preceding term. In the case of Cox v. The State, ex rel., 30 Kan. 202, 2 Pac. 155, it was held that where by operation of law a term of court in a certain county expired, in order to the commencement of a term in another county of the same district, a case on trial before a judge pro tem. in the first-mentioned county could not be concluded in that county after the expiration of the term there, and while the regular judge of the district was holding the other term in the other county. In the case of Packard v. Packard, 34 Kan. 53, 7 Pac. 628, an action for divorce and alimony had been tried in one county. A judgment granting the divorce was rendered before the close of the term, but the matter of alimony was taken under advisement and was determined after the term and in another county. It was held that that
Our conclusion is that the order made in Hodgeman county correcting the journal entry of proceedings in Rush county was made without jurisdiction either in the court or the judge, and that it could not operate against the defendant’s plea of former jeopardy; and, inasmuch as no similar order can ever be made without the defendant’s consent, he is entitled to his discharge upon his plea. The judgment of the court below is therefore reversed, with directions for the appellant’s discharge.