THE STATE OF WISCONSIN, vs. EDWARD LEAHY, 1 Wis. 258

By the Court, Whiton, C. J. In this case the defendant was convicted of the crime of murder, in the Circuit Court for the county of Columbia. A question of law arising at the trial, having been deemed by the judge, so important as to require the opinion of this court, the case has been reported to us pursuant to the statute. B. S. Chayo. 148, § 8. The question is, whether the court was lawfully held, at the time of the conviction.

It appears, from the report of the judge, that the term of the court, held for the county of Columbia, at which the defendant was convicted, commenced-on the second Monday of April, and that a term of the Circuit Court, as provided by statute, was to be holden on the third Monday of the same month, for the county of Sauk It further appears, from the report, that the trial of the defendant was commenced on Thursday, of the first week of the term, hut was ^ concquqeq -axitil the following Wednesday.

As the counties of Columbia and Sauk belong to the third circuit, it is contended, that the court could not, lawfully, hold its sittings in the former county, after the arrival of the time fixed by law, for the commencement of the term in Sauk county ; that the statute declaring that a term of the court should be held in Sauk county, on the third Monday of April, had the same effect upon the duration of the term in Columbia, as though it had expressly declared, that the term held for that county, should close when the third Monday of April arrived.

A number of cases were referred to, at the argument, by the counsel for the defendant, to support this position. In the case of Archer vs. Ross, 2 Scam. R. 303; Davis vs. Fish, 1 Greene R., 406; Gabel vs. The State, 2 id. 559; the court held that no valid act could be done by the court holding a term for a county, after the time appointed by law, for holding a term in another county, had arrived. In the case of Archer vs.

Ross, above referred to, the facts were these : The court was holding a term in Pike county, and during the term, appointed a special term for the same county, to commence on the day appointed by law, for the commencement of a term in Calhoun county. The court say : “ This was the day the judge of the first circuit was required by law, to hold a Circuit Court in the county of Calhoun. It was the day of the commencement of the regular term in that county, and the law imperatively required the judge to attend and open such court at such time, if practicable.

On the ground of the direct interference with his duty, we are of the J . opinion that the special term was unauthorized. The term of the Pike County Court had expired by the limitation of law, and the judge would have been justified in adjourning the Circuit Court of Pike before the time limited for its expiration, if it had become necessary to do so, for the purpose of travelling to the county seat of Calhoun, in order to commence the term on the day appointed by law.” The reasoning of the court does not seem very clear.

If the arrival of the time fixed by law for the commencement of the term of a court in a county, operates as a termination of the term in the county where the court is next previously held, such an effect will follow without any regard to the duty of the judge to hold it.

If the act of the Legislature appointing a term of the Circuit Court, in Sauk county, on the third Monday of April, made it impossible to continue the term in Columbia after that day had arrived, this result follows, not because it was the duty of the judge to hold a court, at the county seat of Sauk County on that day, but because the time limited by’ law, for the holding the term in Columbia had expired ; for it must be admitted that the court could lawfully continue in Columbia, until the time fixed by law for its continuance had elapsed, and it by no means follows that, because it was the duty of the judge to hold a term of the court in Sauk, he could-not continue the term in Calumbia, and render judgments and sign decrees, which would bind the suit-ers in the court, as effectually as though the continuance of the term did not include a violation of duty on his part.

A violation of duty on the part of the judge, does not, of necessity, make the proceedings the court over which he presided void. The question then recurs, did the act of the legislature fixing tjie time of the commencement of the term in Sauk C01inty on the third Monday of April, have the effect to close the term in Columbia when that day arrived ? We think it would he violating the plainest rules for the construction of statutes to give it such an effect.

But, admitting that such would he its effect, if the continuance of the term in Columbia after the third Monday of April had arrived, would, of necessity, have prevented the holding of the term in Sauk, at the time appointed hy law; still, under the Constitution of this State, such a consequence would not follow. Our Constitution,

article I,

section 11, contains the following provision: “ The judges of the Circuit Coui’t may hold court for each other, and shall do so, when required hy law.” It will be seen from this provision, that the only reason which can he urged in favor of the' position contended for hy the counsel for the defendant, fails in its application to the Circuit Courts of this State; for there was no necessity for the presence of the judge of the Third Circuit at the county seat of Sauk county on the third Monday of April, in order that a court might he held there on that day.

The duty of holding the term might have been performed hy another judge ; and, it would undoubtedly he the duty of a circuit judge, who was engaged in holding a term of his court, and who had important business before him which he could not complete, before the time appointed hy law for the holding of a term in another county in Ms circuit should arrive, to procure, if possible, the judge of another circuit to hold the term until he should he relieved. Whether this was done in the present instance, the report of the judge does not show.

It was stated at the argument, that the clerk of the Circuit Court of Sauk county adjourned the court from day to day, from the third Monday of April until the succeeding Wednesday, as provided hy the statute {Session L. 1852, p. 502) ; and on that day the judge attended and opened court, as the statute above referred to provides.

As, by force of the statute, the adjournment of the court by the clerk, from day to day, until Wednesday, and the presence of the judge on that day, prevented the loss of the term, it was contended by the Attorney General that the effect of these proceedings must be the same, as though the term in Columbia has closed before the third Monday in April, and the term had been commenced in Sauk on that day. But, as the report of the judge does not disclose the facts relied on by the Attorney General, we have not felt at liberty to notice them.

Upon the whole, we are of the opinion, that the conviction of the defendant was regular, and that there is no cause for arresting the judgment.