Castleberry v. Jones

• Decision Date: 03 February 1940
• Docket Number: A-9806.
• Citation: 99 P.2d 174,68 Okla.Crim. 414
• Parties: CASTLEBERRY v. JONES, Judge.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

99 P.2d 174

68 Okla.Crim. 414

CASTLEBERRY v. JONES, Judge.

No. A-9806.

Court of Criminal Appeals of Oklahoma

February 3, 1940

Syllabus by the Court.

1. Public confidence in the judicial system and courts of justice demands that cases shall be tried by unprejudiced and unbiased judges, and a defendant in a criminal case has the right to a change of judge where the presiding judge is in fact prejudiced against him.

2. Mandamus lies to prevent a prejudiced judge from presiding at the trial of a criminal case.

3. Petition for mandamus to require judge to disqualify himself from presiding in criminal prosecution stands for writ itself, where judge makes return without service of alternative writ. 22 Okl.St.Ann. § 575, St.1931, § 2915; Const. art. 2, § 6, Okl.St.Ann.

4. Under declaration of bill of rights that right and justice shall be administered without sale, denial, delay, or prejudice, courts are required to administer justice without prejudice, and judge is prohibited from trying cause in which he has prejudice in favor or against party. Const. art. 2, § 6.

5. In statutory mandamus proceeding to require judge to certify disqualification, question of judge's disqualification will be determined by Criminal Court of Appeals on petition response, and proof. 22 Okl.St.Ann. § 575, St.1931, § 2915.

6. Statutory application for change of judge on ground of prejudice must set forth facts on which claim of prejudice is made. 22 Okl.St.Ann. § 575, St.1931, § 2915.

7. "Prejudice," within constitutional provision guaranteeing every person charged with crime trial without prejudice, does not include opinion of judge as to guilt or innocence of defendant, but means presence of such state of mind or feeling as might prevent him from giving defendant fair trial. Const. art. 2, § 6.

8. Courts should scrupulously maintain the right of every defendant to an impartial and disinterested tribunal for determination of his rights; in order to foster confidence in the integrity and impartiality of courts a presiding judge should be compelled to certify his disqualification where it appears probable that such judge would not afford defendant a fair trial. In this case held, that the application on account of prejudice of the judge should have been granted. Held, further, that respondent having refused to disqualify, mandamus requiring him so to do is awarded.

Application by A. L. Castleberry, for writ of mandamus, to disqualify Wm Jones, Judge of the County Court of Pittsburg County, from proceeding with the trial of a criminal case, wherein he is the defendant.

Writ granted.

Robert J. Bell, of McAlester, for petitioner.

Paul Gotcher, Co. Atty., of McAlester, for respondent.

DOYLE Presiding Judge.

The petition filed in this court January 26, 1940, omitting formal parts, reads as follows:

"1. That he stands charged by information filed on the 14th day of December, 1939, of the crime of illegal possession of intoxicating liquors, being case number 4948 in the County Court of Pittsburg County, Oklahoma, the court presided over by respondent. A true and correct copy of said information so filed and so pending against this petitioner is hereto attached as Exhibit 'A' and made a part hereof.

2. That on January 23, 1940, after due notice having first been served upon the County Attorney of Pittsburg County, Oklahoma, and service having been acknowledged thereof by said County Attorney, this petitioner filed his verified application under the laws of the State of Oklahoma for the disqualification of the presiding judge, and for a change of judge, alleging that the trial judge, Hon. Wm. Jones, was biased and prejudiced against him, he could not have a fair and impartial trial before said judge as provided by the Constitution and Statutes of the State of Oklahoma. A true and correct and duly certified copy of said application for disqualification so filed as aforesaid is hereto attached as Exhibit 'B' and made a part hereof; said petitioner being compelled to file a certified copy instead of the original because the Court Clerk of Pittsburg County, Oklahoma, refused to surrender the original for the purpose of this petition.

3. That there was filed on behalf of the respondent by the County Attorney of Pittsburg County, Oklahoma, with the Court Clerk, a general denial of the matters and things set forth in said application for disqualification, a true and correct copy of same being hereto attached as Exhibit 'C' and made a part hereof.

4. That said application for disqualification so filed as aforesaid came on for hearing before the respondent, Hon. Wm. Jones, by agreement of counsel on January 24, 1940, at which time the respondent, Hon. Wm. Jones, refused to certify his disqualification as requested by petitioner and refused to grant a change of judge. A full, true, correct and complete transcript of the proceedings had at said time, certified by Helen Gernert, County Court Reporter, and bearing the seal of the County Court of Pittsburg County, Oklahoma, is hereto attached as Exhibit 'D' and made a part hereof.

5. That in the cause now pending against petitioner, there is filed a motion by said petitioner to suppress the testimony of the State alleging that the evidence against this petitioner was obtained by means of an illegal search and seizure of his home and residence and the respondent herein has prejudged the law involved in said hearing and is disqualified to act thereon as well as to try the issues of fact in a jury trial; that unless a temporary restraining order is issued by this Court against his Honor, Wm. Jones, County Judge, petitioner verily believes that respondent will set his case for trial and will pass upon the motion to suppress the evidence.

6. Petitioner further states that for a long period of time the Honorable Wm. Jones, County Judge, has entertained a violent personal dislike and prejudice towards this petitioner which has been expressed on many occasions; that in the month of July, 1938, while the said Honorable Wm. Jones was a candidate for re-election as County Judge, he, the County Judge, communicated with W. O. Merrill, the then qualified and acting undersheriff of Pittsburg County, Oklahoma, and demanded that the said Merrill go to the home of this petitioner and raid the same; whereupon the said Merrill requested that a search warrant therefor be issued as his authority for entering said premises; whereupon the County Judge, Wm. Jones, stated that no search warrant was necessary as everybody knew the petitioner, A. L. Castleberry, to be a bootlegger and on which occasion violent language was used by the County Judge towards this petitioner; that on at least one other occasion, said County Judge in conversation with said Merrill expressed strong dislike and prejudice towards this petitioner and his dislike of this petitioner because this petitioner was not supporting him for re-election.

7. That shortly after the primary election, being on the day that the Industrial Commission was meeting in the County Court Room, the Honorable Wm. Jones, County Judge, flew into a rage concerning this petitioner, stating that he was a bootlegger and using other vile language towards this petitioner and that he, the said County Judge, was going to see that the petitioner was driven out of the County and see that he was caught for selling liquor and threatening to call public gatherings wherein he, the County Judge, would enlist the aid of certain Ministers of the Gospel and openly condemn this petitioner; that said conversation took place in the presence of the attorney for this petitioner, Walter Haggard, the sheriff-elect, of Celest O'Bannon, court reporter of the County Court of Pat Jones and Denver Jones, both brothers of Honorable Wm. Jones, County Judge, and other parties to this affiant unknown at this time; that on said occasion the Honorable Wm. Jones addressed the attorney for this affiant and instructed said attorney to inform this affiant of his attitude, which was done by said attorney.

8. Affiant further states that the affidavit for search warrant and search warrant in this case were drawn by the court reporter of the County Court without consultation with the County Attorney's office and states upon information and belief that the County Judge Wm. Jones helped in the preparation of said papers and the passing upon the validity of said search warrant and affidavit for search warrant, said County Judge would be in effect construing the legality of his own acts.

9. Affiant further states that on numerous occasions the Honorable Wm. Jones, County Judge, in passing upon motion to suppress search warrants in similar cases, has admitted the invalidity of the search warrants, and he has admitted the validity of the motions to quash the same on the basis of present holding of the Criminal Court of Appeals of the State of Oklahoma; but has stated in said instances that he refused to follow the rulings of the Criminal Court of Appeals and would force the defendants to trial and put the issues squarely before the public by forcing the Criminal Court of Appeals, if they wished, to reverse said cases, assigning various reasons as to why he would not follow the decisions of the Court.

10. That one of said occasions was at the last term of County Court in the case of State of Oklahoma against Tom Lenora being cause No. 4903, wherein attorney for said defendant was the Honorable F. D. McSherry of McAlester, Oklahoma; that in this case said County Judge stated that the search warrant was bad under the rulings of the Criminal Court of Appeals but nevertheless he was overruling the same; that he, the said County Judge had rather stay with the officers than the bootleggers; that the Criminal Court of...