Chafin v. United States

• Decision Date: 17 April 1925
• Docket Number: No. 2331.,2331.
• Citation: 5 F.2d 592
• Parties: CHAFIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

5 F.2d 592 (1925)

CHAFIN v. UNITED STATES.

No. 2331.

Circuit Court of Appeals, Fourth Circuit.

April 17, 1925.

F. C. Leftwich and John H. Holt, both of Huntington, W. Va. (John S. Marcum and Holt, Duncan & Holt, all of Huntington, W. Va., on the brief), for plaintiff in error.

Elliott Northcott, U. S. Atty., of Huntington, W. Va., Mabel Walker Willebrandt, Asst. Atty. Gen., and B. J. Pettigrew, Asst. U. S. Atty., of Charleston, W. Va. (Lawrence L. McClure, Asst. U. S. Atty., of Huntington, W. Va., on the brief), for the United States.

Before WOODS and WADDILL, Circuit Judges, and McDOWELL, District Judge.

WOODS, Circuit Judge.

The defendant, Don Chafin, was convicted on the charge of conspiring with one Tennis Hatfield to violate the National Prohibition Act by making and carrying into effect an agreement to open and maintain a place for the sale of intoxicating liquors at Barnabus, Logan county, W. Va.

Relying on section 21 of the Judicial Code (Comp. St. § 988), the defendant imputes error to the District Judge of the Southern District of West Virginia in refusing to allow affidavits imputing to him prejudice and bias to be filed, and in proceeding with the trial after the presentation of the affidavits. The section invoked reads:

"Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but another judge shall be designated in the manner prescribed in the section last preceding, or chosen in the manner prescribed in section 23, to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one such affidavit; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. * * *"

This is the only federal statute relating to the disqualification of a judge for bias or prejudice, and it was evidently intended to cover the whole subject of relief for litigants from the disadvantage of having their causes tried by judges alleged to be prejudiced or biased. The obvious reason for requiring a party to file the affidavit ten days before the beginning of the term was to protect the other party from useless labor and expense of preparation for trial, to protect the public from sudden disarrangement of the court's business, and to prevent delay in the trial of causes.

The term of the court began on September 16, 1924. The indictment was returned September 19. The next day, September 20, defendant appeared and on his motion was admitted to bail for his appearance for trial on October 6. On the morning of that day the case was called for trial, and on request of defendant's counsel was postponed until the afternoon. In the interval, the request of defendant's counsel that the United States attorney consent to a continuance was refused. At the afternoon session defendant by his counsel tendered his own affidavit and affidavits of others averring prejudice and bias of the judge, which on the objection of the United States attorney the District Judge refused to receive or allow to be filed, on the ground that they had not been seasonably presented, and that the purpose of their presentation was to obtain a continuance. In substance, the defendant's affidavit and the supporting affidavits of other persons met the requirements of the statute that "the affidavit shall state the facts and reasons for the belief that such bias and prejudice exists." The affidavit of Thomas B. Davis, made a part of defendant's, imputes to Judge McClintic indecorous remarks made to Davis in March, 1924, indicative of a purpose to convict the defendant Chafin of illicit traffic in intoxicating liquors. There were other affidavits adopted by defendant, less important, relating to public speeches by Judge McClintic condemning the defendant as sheriff of Logan county and other sheriffs for failing to enforce the prohibition laws.

No showing was presented that the statements of the District Judge alleged to have been made in September, 1923, and March, 1924, relied on as showing prejudice, were not known to the defendant on September 20, 1924, the date he was admitted to bail for his appearance for trial on October 6, nor was any other reason given for the delay in filing the affidavits. When the District Judge announced that he would exclude the affidavits because they were not filed in time, no attempt was made to show by affidavit that the facts were not known to the defendant at the time he appeared and gave bail. On the contrary, the affidavits themselves indicate that the defendant knew of the statements imputed to Judge McClintic in September, 1923, and March, 1924, immediately after they were made. There is no escape from the conclusion that the defendant on September 20, 1924, knew everything alleged to show bias and prejudice of the presiding judge that he knew on October 6 following, and that he delayed presenting his affidavits for sixteen days.

The argument in his behalf is that since he was not indicted until after the September, 1924, term began, and so could not submit his affidavits as required by the statute ten days before the beginning of the term, no diligence in submitting them was required of him. The statute was intended as a privilege and a protection to persons accused of crime and other litigants. It conferred on every party to a cause the right to disqualify any judge on his mere ex parte affidavit of his version of the acts and words of a judge showing prejudice or bias. This does not, of course, mean that any such charge that a party to a cause may choose to make against the judge is presumed to be true in fact. The statute did not contemplate such injustice as that to a judicial officer. But to the end that there should be no controversy or doubt as to the fairness of trials, the statute allows neither the judge, nor the public, nor any party to the cause to controvert anything the affidavit contains which if true would show bias or prejudice. The facts stated in affidavit must be acted upon as if true. Berger v. United States, 255 U. S. 22, 41 S. Ct. 230, 65 L. Ed. 481.

But the statute was not intended to make this right and privilege of removing a judge from the bench unlimited and arbitrary. Its language and spirit require of the defendant, as the price of the privilege bestowed, such diligence in its use as will give the least inconvenience and expense to the opposing party and obstruct as little as possible the due course of the administration of justice. A statute can rarely provide in express terms for all possible contingencies. The Legislatures and the people must depend on the courts to give statutes such interpretation as will express their spirit and tenor, applying them when the case is clearly within the right to be protected or the mischief to be remedied.

The diligence in express terms required of filing the affidavit ten days before the term begins can apply only when the indictment is found at least ten days before the term begins. Nothing is said in express language as to an indictment found within a less number of days before the term begins, or one found after the term begins. Nevertheless we think the true...