Crawford v. Ferguson

• Decision Date: 02 May 1911
• Citation: 115 P. 278,5 Okla.Crim. 377,1911 OK CR 96
• Parties: CRAWFORD v. FERGUSON, County Judge.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

115 P. 278

5 Okla.Crim. 377, 1911 OK CR 96

CRAWFORD v. FERGUSON, County Judge.

Court of Criminal Appeals of Oklahoma

May 2, 1911

Syllabus by the Court.

Where three or more persons, without authority of law, combine together, and by means of threats to use force or violence if accompanied by immediate power of execution, seek to accomplish any unlawful purpose, they are guilty under the law of riot.

The violation of law under the guise of attempting to enforce the law is not only illegal, but it is anarchy.

The people have the right, in a quiet and peaceable manner, to combine together and organize for the purpose of assisting the officers in the enforcement of law, and they may also take such steps as they may deem necessary for the purpose of carrying out the objects of such organization, taking care at all times to abstain from any illegal act or conduct.

Judicial officers should abstain from participating in public meetings in which questions are discussed which might afterwards come before them for decision. A judge should not be a partisan. Whenever he becomes a partisan, his usefulness on the bench is greatly impaired, if not entirely destroyed.

A judge should be careful not to commit himself upon questions of fact or law which may come before him for decision, until the matter is properly presented in open court, and both parties have had ample opportunity to be heard.

There is a great and manifest difference between being prejudiced against the commission of crime and being prejudiced against a person charged with the commission of such crime. The fact that a judge is prejudiced against the commission of crime does not disqualify him from presiding at a criminal trial. He is only disqualified when he has personal bias or prejudice against the defendant, who is on trial before him charged with the commission of a crime.

While it is improper to impeach a witness by showing that he has been indicted, arrested, or imprisoned for crime, before conviction, yet his occupation and companions are of his own choosing, and may therefore be shown, when they indicate a want of moral character, for the purpose of impeaching his testimony. Slater v. U.S., 1 Okl. Cr. 275, 98 P 110, reaffirmed.

When a witness has been convicted of bootlegging, or has the general reputation of being a bootlegger, this fact may be shown for the purpose of affecting his credibility as a witness.

It is improper for a lawyer to act in the double capacity of a notary to take acknowledgments to affidavits, to be used in the trial of a case in which he is the attorney for one of the parties.

Petition of J. P. Crawford for a writ of mandamus to George W Ferguson, County Judge. Petition denied.

227k49(2) Statements and Expressions of Opinion by Judge.

A judge should not commit himself on questions of fact or law which may come before him, until the matter is properly presented in open court.

That a witness has been convicted of bootlegging may be shown to impeach his credibility.

I. H. Lookabaugh, for petitioner.

A. L. Emery, Co. Atty., and J. P. Wishard, Asst. Co. Atty., for respondent.

FURMAN P.J.

J. P. Crawford, the petitioner, being prosecuted by information in the county court of Blaine county, Okl., charged with the offense of violating the prohibitory liquor law of the state of Oklahoma, on the 14th day of April, 1911, made application for a change of judge, upon the ground that George W. Ferguson, the judge of the county court of Blaine county, and the respondent herein, was so prejudiced against petitioner that petitioner could not secure a fair and impartial trial on said charge before respondent; and alleging, further, that about the middle of March, 1911, respondent participated in the action of an organized mob, consisting of more than one hundred persons, which mob visited a number of people in the

town of Watonga who were supposed to be violators of the prohibitory liquor law of the state, and commanded such persons to quit their business and leave the town, and threatened said parties with violence in case the commands of said organized mob were not complied with; and that petitioner was a leader and one of the spokesmen of said mob. This application was duly sworn to by petitioner. This application being presented to respondent, he declined to certify his disqualification from presiding at the trial of said cause. Therefore, on the 15th day of April, petitioner applied to this court for an alternative writ of mandamus, requiring respondent, either to certify his disqualification to act as said judge or show cause for his refusing to do so. The original application for a change of judge as presented to respondent was attached to and made a part of the petition for a writ of mandamus filed in this court. This matter came on to be heard on the 24th day of April, 1911. Upon a hearing of this case, respondent denied the allegations contained in the petition for mandamus. The petitioner filed a number of affidavits sustaining the allegations contained in his petition.

It is a significant fact that 23 of these affidavits were acknowledged before the attorney for the petitioner. As this matter has not been passed upon by this court before, we will not do more now than say that the authorities all denounce this practice. If it is permitted, the door is opened to all kinds of impositions and frauds. Such conduct must not be repeated. In the future such affidavits will not be received or considered, except as the basis of proceedings against the offending attorney.

If the facts stated in the petition for mandamus had been proved to be true beyond all question, petitioner would be entitled to a change of judge. The conduct therein set forth and described would not only be illegal, but it would amount to a riot. Section 2497 of Snyder's Comp. Laws of Okl. 1909, is as follows: "Any use of force or violence, or any threat to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot."

It matters not how good their intentions may be, if three or more persons, without authority of law, combine together, and by threats to use force or violence, if accompanied by immediate power of execution, seek to accomplish any unlawful purpose, they are guilty under the law of riot, and liable to be imprisoned in the state penitentiary for any period not less than three years.

A violation of law, when committed even for the purpose of enforcing the law, is not only illegal, but it is anarchy itself. Therefore, if it were proven to this court that the facts stated in the petition for mandamus were true, it would be the duty of this court to issue the writ prayed for, it matters not what the intention of the parties who committed the acts may have been, even though such mandamus might involve every man in Blaine county. When a violation of law has been proven, this court cannot, Pontius Pilate like, place its fingers upon the public pulse and sustain such violation of law, even though it be demanded by the entire people of a county. Therefore we have no hesitancy in saying that the showing made by the petitioner, if not disproven, would clearly entitle him to a change of judge. Petitioner filed a great many affidavits sustaining his petition. Upon the hearing of this matter, six reputable citizens of Blaine county were placed upon the witness stand, and they denied every material allegation tending to establish prejudice on the part of respondent contained in the petition for mandamus.

In the case of Slater v. U.S., 1 Okl. Cr. 275, 98 P. 110, this court held that it was improper, for the purpose of impeaching a witness, to ask him on cross-examination if he had ever been indicted, arrested, or imprisoned for crime before conviction, but this court also held, in the same case, that it is always admissible to inquire into the antecedents of a witness, by showing his occupation, social connections, manner of living, and such matters, for the purpose of affecting his credibility. The reason for this distinction is that the indictment, arrest, and imprisonment of a witness are involuntary on the part of the witness, and result from accusations which are often prompted by malice, and that they are not conclusive as to the guilt of the witness of the offense charged against him, but that the occupation, companions, and associates of a witness are of his own choosing, and indicate his real character. To prevent any misconception upon this question, the case of Slater v. U.S., above quoted, should be carefully examined. We have never modified, and do not expect to modify, any statement contained in that opinion.

Upon the hearing of this matter, the court invited information as to the witnesses who had made affidavits in support of the petition for mandamus. The effect of their affidavits was to charge respondent with having assisted in the organization of a mob, and with being one of the leaders in a riot. If these accusations were true, respondent should not preside at the trial of this cause, but should be removed from office and confined in the penitentiary as a common felon. It was therefore important for this court to know who these men were who had made these serious charges against a judicial officer of the state of Oklahoma. Counsel for petitioner did not give us any information upon this subject. But this matter was gone into by counsel for respondent, and it was shown that these men were professional bootleggers, or the companions and associates of bootleggers. When the hearing was through the court, desiring to be fair and just to all parties and to condemn no man without affording him an opportunity to be heard, offered to allow either party...