Buchanan v. State

• Decision Date: 18 March 1909
• Citation: 101 P. 295,2 Okla.Crim. 126,1909 OK CR 41
• Parties: BUCHANAN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

101 P. 295

2 Okla.Crim. 126, 1909 OK CR 41

BUCHANAN v. STATE.

Court of Criminal Appeals of Oklahoma

March 18, 1909

Syllabus by the Court.

When the accused, in compliance with subdivision 4, § 291, art. 8 c. 68 (section 5427), Wilson's Rev. & Ann. St. Okl. 1903 makes affidavit before the commencement of the trial, in which it is positively stated that he cannot have a fair and impartial trial, on account of the bias and prejudice of the presiding judge of the court where the indictment or information is pending, it is sufficient. The affidavit need not set up the facts on which it is based, or reasons for the belief of the affiant as to the bias and prejudice of the judge. Upon the filing of such affidavit a change of judge must be allowed, but not more than one change of judge shall be allowed in any case.

[Ed Note.-For other cases, see Judges, Cent. Dig. § 227; Dec Dig. § 51. ^[*] ]

Upon the filing by the accused of an affidavit in proper time, stating positively that he cannot have a fair and impartial trial, on account of the bias and prejudice of the presiding judge of the court where the indictment or information is pending, such judge cannot thereafter perform any official act in such case binding upon the accused, except the allowance of such change of judge.

[Ed. Note.-For other cases, see Judges, Cent. Dig. §§ 235-245; Dec. Dig. § 56. ^[*]]

Error from District Court, McLain County; R. McMillen, Judge.

George Buchanan was convicted of crime, and brings error. Reversed.

At the March, 1908, term of the district court of McLain county, Okl., George Buchanan, who will hereinafter be referred to as the "accused," was indicted for rape, upon the person of Estella Roberts. On the 17th day of April, 1908, the accused was placed on trial for said offense, and on the following day the jury returned a verdict of guilty and assessed his punishment at 10 years in the penitentiary. Motion for new trial was presented in due time, and was overruled by the court, from which ruling and the judgment the accused prosecuted error to the Supreme Court of this state. Said court, as required by law, upon the creation of this court, duly transferred the case to this court.

Crawford & Bolen, for plaintiff in error.

Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen., for the State.

BAKER J.

The petition in error in this case sets forth 10 specifications, but only four of the errors assigned are relied upon and briefed. They are: (1) The court erred in overruling the application of the defendant for a change of judge; (2) the verdict is contrary to the evidence; (3) the verdict is contrary to law; and (4) the verdict is contrary to the law and the evidence. The Attorney General filed the following confession of error: "Comes now on the 16th day of March, 1909, the Attorney General and informs the court that the record in this cause shows that on April 17, 1908, before the above-entitled cause was called for trial, the defendant, George Buchanan, filed his affidavit in the trial court, stating that he could not have a fair and impartial trial on account of the prejudice of the presiding judge, Hon. R. McMillen, as provided by the fourth subdivision of section 291, art. 8, c. 68, of Wilson's Revised and Annotated Statutes of Oklahoma of 1903, in force at that time. That by reason of said statute, and the construction placed thereon by the Supreme Court of the territory of Oklahoma *** that said R. McMillen, as presiding judge, had no other or further jurisdiction in said cause than to have granted a change of judge." Inasmuch as this cause will be remanded, and may be again tried, this court believes the ends of justice will best be subserved by passing on assignment No. 3 only, which complains of the court's action in refusing to allow the change of judge in this case. This assignment will therefore only receive our attention and decision.

As shown by the record, on the 17th day of April, 1908, in proper time, and before this case was called for trial, the accused filed his affidavit in this case, in which he states "That he cannot have a fair and impartial trial on account of the bias and prejudice of the presiding judge, Hon. R. McMillen." Notwithstanding the filing of said affidavit, the presiding judge failed and refused to allow a change of judge, and proceeded to, and did, hear this cause. Subdivision 4 of section 291, art. 8, c. 68 (section 5427), Wilson's Rev. & Ann. St. Okl. 1903, reads as follows: "If it be shown to the court by the affidavit of the accused that he cannot have a fair and impartial trial, by reason of the bias and prejudice of the presiding judge, or that the judge has been of counsel in said cause, or is of kin to either party to the action, or is interested, a change of judge shall be ordered, and the clerk of the district court shall immediately transmit to the clerk of the Supreme Court of the territory a certified copy of the order granting the change of judge, and the clerk of the Supreme Court shall, if said court be in session, immediately present the same to the court, and if said court be not in session, then he shall at once deliver the same to the chief justice of the territory, and the Supreme Court of the territory, or the chief justice thereof, as the case may be, may designate any other district judge of the territory to try the cause: Provided, that not more than one change from the county, and one change from the judge shall be...