Ex parte Hudson
| Decision Date | 28 March 1910 |
| Citation | 107 P. 735,3 Okla.Crim. 393,1910 OK CR 18 |
| Parties | Ex parte HUDSON. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Petition for rehearing. Denied.
For former opinion, see 106 P. 540.
The decision in this case was filed January 21, 1910. On February 17, 1910, petitioner filed his application for rehearing.
There is no contention made that the original decision is erroneous as to the holding that the act of the Legislature (Sess. Laws 1909, p. 167) providing for the disqualification of judges is in effect notwithstanding the failure of the Legislature to attach the enacting clause. It is urged here that section 5 of this act is in conflict with the Constitution, because it prescribes an unreasonable remedy, which in effect deprives the defendant of his right to a trial without prejudice. As to whether the procedure prescribed is calculated, in some instances, to work a hardship on the party complaining, is not a matter to be determined by this court. That question was determined by the Legislature. The question for this court to determine is whether the section is in conflict with the Constitution, and whether the petitioner was bound to comply with its provision before he could pray for relief in this court. The language of the section is as follows: It was urged by counsel for the petitioner in the oral argument that in this state a plaintiff in a criminal case has the constitutional right to be tried before a judge without prejudice, and that when his affidavit is filed, alleging prejudice of the judge, that he is not bound to comply with the provisions of this act, and that his failure to do so is not a waiver of his constitutional right of a fair trial; that he cannot waive a constitutional right. With this contention we cannot agree. The Legislature had the right to regulate the method of obtaining a fair trial. Boneparte v. U. S., 106 P 347. If the mere filing of the affidavit would per se disqualify a judge, and there was no method of determining this question before trial, a defendant whose conscience would permit him to make the affidavits to each succeeding judge could never be brought to trial. It is no answer to say only one change of judge is permitted by statute. This statute cannot deprive a defendant of his right to a trial before a judge without prejudice, and under the constitutional guaranty of this right any judge elected or appointed to take the place of the regular judge may be disqualified, but the method prescribed by the Legislature must be followed. His right to be tried before a judge without prejudice is a personal right, and the doctrine is well settled that a personal right or privilege can always be waived. A party may waive any provisions, either of a Constitution or a statute, intended for his benefit. Farmers' Nat. Bk. v. McCall (Sup.) 106 P. 866; Armfield v. Brown, 70 N.C. 27; Hahn v. Brinson, 133 N.C. 7, 45 S.E. 359. A well-considered case on this question is that of Mehlin et al. v. Ice, 56 F. 12, 5 C. C. A. 403. In that case the question arose in an action of forcible entry and detainer in the United States court in the Indian Territory. The matters in controversy had been determined in the district court of the Cherokee Nation. The defendant, Ice, was not a citizen of the Cherokee Nation, and in the United States court pleaded the lack of jurisdiction of the Cherokee court over his person. The United States Circuit Court in disposing of the question said: "But it is said, conceding this to be so, and conceding that the District Court of the nation had jurisdiction of the subject-matter of the suit of Mehlin v. Ice, that it did not have and could not acquire jurisdiction over the person of Ice, because he was a white man, and a citizen of the United States, and that its proceedings are, for that reason, a nullity. There is a conclusive answer to this contention. Ice was notified to appear before the clerk, and show cause why he should not be put out of the possession of the premises. In response to this summons he entered a general appearance. He did not challenge the jurisdiction of the court over the subject-matter of the suit or over his person. He rested his right to the possession of the premises on a lease from Armstrong, and exhibited the lease, and asked that Armstrong be made a party defendant, which was done. Conceding that Ice, being a white man, was for that reason not subject to the jurisdiction of the courts of the nation, this was a personal privilege, which he might and did waive. The eleventh amendment to the Constitution of the United States declares the judicial power of the United States shall not extend to a suit against a state, but it has always been held that the immunity from suit granted by this article is a personal privilege, which the state may waive at pleasure; and, when it does waive its privilege, and voluntarily submits to the jurisdiction of a United States court, it is concluded by the judgment. Beers v. State of Arkansas, 20 How. 527 ; Clark v. Barnard, 108 U.S. 436-447, 2 S.Ct. 878 ; Cunningham v. Railroad Co., 109 U.S. 446-451, 3 S.Ct. 292, 609 . The denial of jurisdiction to the Cherokee courts over white men in the Cherokee country is not any broader, and is not founded on as high considerations of public policy, as the denial to the courts of the United States of jurisdiction over the states. A party may waive any provision either of a Constitution, treaty, or statute intended for his benefit. It is therefore competent for a white man to waive the treaty and statutory stipulations exempting him from the jurisdiction of the Cherokee courts; and when he enters a general appearance to an action pending in those courts, and pleads
to the merits, and there is a trial upon such plea, he thereby waives the exemption, and submits himself to the jurisdiction of the court, and will not afterwards be heard to contest the validity of the proceedings and judgment of the Cherokee court upon the ground that it had no jurisdiction of his person. Shutte v. Thompson, 15 Wall. 151 ; Shields v. Thomas, 18 How. 253 ; Jones v. Andrews, 10 Wall.
327 ; Bank v. Okely, 4 Wheat. 235 ; U.S. v. Rathbone, 2 Paine, 578 [Fed. Cas. No. 16,121]; Hawes, Jur. §§ 9-11; Brown, Jur. §§ 49, 50; Bostwick v. Perkins, 4 Ga. 50; In re Cooper, 93 N.Y. 507; State v. Polson, 29 Iowa, 133; State v. Fooks, 65 Iowa, 196, 452, 21 N.W. 561, 773; Railway Co. v. McBride, 141 U.S. 127, 11 S.Ct. 982 . The conclusion reached on this branch of the case renders it unnecessary to consider the other assignments of error."
It is urged that the pronoun "him" in the phrase, "and request him to so certify," refers to the clerk of the court, and that the pronouns "his" and "him" in the phrase, "and upon his failure so to do within three days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do," refers to the clerk of the court. With this contention we cannot agree. To place this construction upon this section would give it a ridiculous and nonsensical meaning.
It is urged that these pronouns refer to the clerk for the reason that the first phrase of this section provides that the application must be filed with the clerk. All papers must be filed with the clerk; and the purpose of filing with the clerk is to make the paper a matter of record in order that it may be presented to the judge. The judge can only consider matters that have been made a part of the records of his court, and in our...
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