Ex Parte Harris

• Decision Date: 18 January 1890
• Citation: 26 Fla. 77,7 So. 1
• Parties: Ex parte HARRIS.
• Court: Florida Supreme Court

7 So. 1

26 Fla. 77

Ex parte HARRIS.

Florida Supreme Court

January 18, 1890

Habeas corpus.

Syllabus by the Court

SYLLABUS

1. The interest which disqualifies a judge under section 28, p. 337 McClel. Dig., is a property interest in the action or its result, in contradistinction to an interest of feeling or sympathy or bias that would disqualify a juror.

2. Affinity is the tie between a husband and the blood relations of the wife, and between a wife and the blood relations of the husband, but it does not exist between the blood relations of either party to the marriage and those of the other party, and hence there is no affinity between a brother of a wife and the brother of her husband, and the latter is not disqualified by affinity to preside in the trial of the former for a crime.

3. That a judge has boarded with his sister-in-law, and that she is and has been a daily visitor to his home, remaining there sometimes for days, and the judge has always been a great admirer and friend of a brother of the sister-in-law, and has always regarded him as scrupulously honest, and these considerations lead him to fear that he might not be able to do the state justice, do not disqualify the judge from presiding in the trial of such brother for a criminal offense.

4. Where a party is in custody under an information charging him with a bailable felony, and the judge of the criminal court of record before which he is charged refuses to take any action whatever in the case, either as to bail or trial, on the ground that he is disqualified by reason of interest and affinity to act, and it does not appear to the supreme court on a habeas corpus proceeding that the judge is disqualified bail conditioned for the party's appearance before the criminal court of record will be allowed.

COUNSEL Frank W. Pope and O. J. H. Summers, for petitioner.

William B. Lamar, Atty. Gen., for the State.

OPINION

RANEY, C.J.

The petitioner was arrested on a charge of robbery, and an information was filed against him in the criminal court of record of Duval county, and he was brought into that court for arraignment; whereupon the judge, the Honorable LOTON M JONES, refused to take any action in the cause, either to try him or to admit him to bail, although the petitioner announced his willingness and readiness to be tried, and offered bail with good and sufficient sureties. The reasons given by the judge for his course are that he is the brother of the husband of a sister of petitioner, and is therefore disqualified to take any action in the cause; and, further he has boarded with his said sister-in-law, and she is and has been a daily visitor to his home, remaining there sometimes for days, and petitioner has also been a visitor to his house, and he, the judge, has always been a great admirer and friend of the petitioner, and has always regarded him as scrupulously honest, and these considerations lead him to fear that he might not be able to do the state justice.

Being in the custody of the sheriff on capias issued upon the information, under the above circumstances, Harris applied to one of the justices of this court for a writ of habeas corpus, which he issued, making it returnable before the court, and the sheriff has made a return in keeping with the above facts, stated in the petition.

The petitioner asks to be discharged or admit ed to bail.

The act of December 4, 1862, provides that 'no judge of any court or justice of the peace shall sit or preside in any cause to which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of interest, consanguinity, or affinity to either of the parties, nor shall he entertain any motion in the cause other than to have the same tried.' It also makes it the duty of the judge or justice so incompetent to retire of his own motion without waiting for an application to that effect, and declares void all judgments, decrees, or orders made by a justice so disqualified. Sections 28, 29, p. 337, McClel. Dig.

Judge JONES is not a party to this proceeding, nor is it the proper remedy for obtaining an adjudication between the state and him, or the...