Cox v. U.S.
| Decision Date | 30 July 1897 |
| Citation | 50 P. 175,5 Okla. 701,1897 OK 61 |
| Parties | COX v. UNITED STATES. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Upon an application for a change of trial judges, under section 5138 of the Statutes of this territory (St. Okl. 1893, as amended; Laws 1895, p. 196), the facts and circumstances showing the prejudice of the presiding judge, or other grounds for such change, must be shown by the affidavit of the defendant; and unless from the facts and circumstances stated in such affidavit it reasonably appears that such bias or prejudice on the part of such judge exists, or other cause for such change be shown, the presiding judge may, in the exercise of his judicial discretion, refuse such application.
Error from district court, Logan county; Frank Dale, Judge.
R. S Cox was at the February, 1896, term of the district court for Logan county, sitting with the powers and jurisdiction of a United States district court, convicted of the crime of perjury, and sentenced to imprisonment in the United States penitentiary at Leavenworth, Kan., for a period of four years, and to pay a fine of one dollar. Having moved unsuccessfully for a new trial and in arrest of judgment, he brings the case to this court by petition in error. Affirmed.
Judges 51(4)
Unless reasonable cause for such change be shown in the affidavit filed under Laws 1895, p. 198, 22 Okl.St.Ann. § 561 providing that a change of judge shall be ordered if it be shown by affidavit of the accused that he cannot have a fair trial because of the bias of the presiding judge, the presiding judge may, in the exercise of his judicial discretion, refuse the application.
A. L. Ayers and Joseph Wisby, for plaintiff in error.
C. R. Brooks, U.S. Atty., and T. F. McMechan and Roy V. Hoffman, Ass't U.S. Attys.
The indictment in this cause was found and returned March 13, 1895. On October 14, 1895, defendant filed in said cause his motion for a change of judges, the ground assigned in said motion being "that the judge of this court is so biased and prejudiced against him that he cannot have a fair and impartial trial of said cause before said judge." At the same time defendant filed his affidavit in support of said motion, which affidavit was as follows: "R. S. Cox, being duly sworn, states upon his oath that he is the defendant in the above-entitled cause, and that he cannot have a fair and impartial trial before the judge of said court, because of bias and prejudice existing in the mind of said judge against him." The overruling of this motion is the only error assigned and relied upon by plaintiff in error.
Section 5138 of the Statutes of Oklahoma of 1893, as amended (Laws 1895, p. 198), provides: "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 a change of judge." By an act of congress approved December 21, 1893, it is provided: "The supreme court of said territory [referring to Oklahoma], or the chief justice thereof, may designate any judge to try a particular case or cases in any district when the judge of said district has been of counsel or is of kin to either party to the action, or interested or is biased or prejudiced in the cause, or if for any other reason said judge is unable to hold court." The only question in this case is, had the trial judge any discretion to refuse the application of the defendant for a change of judges to try said cause, and is the statute above quoted mandatory, requiring the judge to grant the change asked, upon the filing of the affidavit? It is contended by counsel for defendant that the statute is mandatory, and leaves no discretion in the judge to whom the application is presented to grant or refuse the same. The question is ably discussed by counsel both for the defendant and for the government, and numerous authorities have been cited in the briefs as sustaining the contention of either. Statutes providing for a change of judge for the reasons stated in this motion have been enacted in nearly all the states of the Union, and the adjudications are numerous; but as the question must necessarily turn upon what was the intention of the legislature in enacting the law, to be determined primarily from the language which they employed in the enactment, and as the statutes vary somewhat in the language used, the decisions are apparently somewhat conflicting. But this conflict is more apparent than real. As the conclusion we have arrived at is not in harmony with the contention of counsel for defendant, we deem it proper to review some of the principal authorities relied on by them, and distinguish between the question as presented by those authorities and as presented in the case at bar.
The leading case relied upon by counsel for defendant, and from which they have quoted at considerable length in their briefs, is the case of State v. Kent (N. D.) 62 N.W. 631. In that case it was held that under the statute of North Dakota, which counsel contends is equivalent to ours, when a person on trial for a felony presents to the judge of the district in which the indictment is pending his affidavit stating that he cannot have an impartial trial by reason of the bias and prejudice of the judge, it is the absolute duty of such judge to call in another judge to try the case; for him to refuse to do so is error,--the language of the North Dakota statute being: "If the accused shall make an affidavit that he cannot have an impartial trial, by reason of bias or prejudice of the presiding judge of the district court where the indictment is pending, the judge of such court may call any other judge of a district court to preside at said trial, *** and do any other act with reference thereto, as though the was presiding judge of said district court." Comp. Laws, § 7312. We think no other construction could have been given the statute than the one given to it by the court in that case. It must be noticed that under the language of said statute the right to a change of judge did not depend upon whether the presiding judge was or was not biased or prejudiced. The fact of such bias or prejudice was not to be considered as an element, and therefore a question whether such prejudice did or did not exist could not be involved for decision. It was not the fact of the bias and prejudice, but the fact of making an affidavit, that determined the right to the change. "If the accused shall make an affidavit," the change shall be granted. If the statute had provided that when the defendant made an affidavit and filed the same with the clerk of the court the change should be granted, it would be equivalent to what the statute does provide. No question is by that statute submitted to the court for determination. His mind was not to be influenced or convinced. It was not to be made apparent or to be shown that he was biased or prejudiced. The right to the change depended upon the making of the affidavit, not the truthfulness of its statement, or the influence of such statement upon any mind. It was therefore mandatory, and no discretion was vested in the judge, for nothing was to be submitted to him for decision. The cases of State v. Henning, 54 N.W. 536, and State v. Palmer, 57 N.W. 490, cited by counsel, were cases in which the supreme court of South Dakota construed the same statute; the statute having first been enacted by the territorial legislature of the territory of Dakota, and afterwards, on the division of the territory and the creation of the states of North and South Dakota, adopted in exact language by the legislatures of each of said states; and the court of South Dakota gives to the statute the same construction as that given by the sister state.
A statute of New Mexico (Gen. Laws [Prince's Ed.] p. 117, § 17) provides "that the venue shall be changed in all cases both civil and criminal when the judge is interested," or when the party moving for the change shall make oath that "he cannot have justice done him in the county in which the suit is then pending, setting forth the cause of such obstruction of justice, which oath must be supported by the additional oaths of at least two disinterested persons." It was held by the supreme court of that territory that if the proper affidavit is made by the party moving for a change of venue, and supported by the affidavits of two or more disinterested persons, such affidavits are to be considered as conclusive. Territory v. Kelley, 2 N. M. 292. We think this statute is equivalent to the Dakota statute. It is the making of the oath by the defendant and by two other persons that gives the right. There, as in Dakota, nothing in the language of the statute implies that the mind of the court is to be addressed, convinced, or influenced, or that the question of the truth of the facts stated in the affidavit is involved. The applicant, and not the judge, determines the change; the fact of the oath being made, and not that of the existence of prejudice or other cause, being the only prerequisite to the right, and leaving no question to be determined, and therefore no discretion to be exercised. In Rafferty v People, 66 Ill. 118, and Id., 72 Ill. 37, it is held that an application for a change of venue by one indicted for murder is not addressed to the discretion of the court, but, upon a proper application being made, the prisoner is entitled to it as a matter of...
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