Johnson v. State

• Decision Date: 18 January 1893
• Citation: 20 S.W. 985
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

20 S.W. 985

JOHNSON v. STATE.

Court of Criminal Appeals of Texas.

January 18, 1893.

Appeal from Dallas county court; E. G. BOWER, Judge.

Eugene Johnson was convicted of libel, and appeals. Affirmed.

Edwards & Blewett, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

SIMKINS, J.

1. The appellant was convicted of circulating a libel, and was sentenced to 60 days' confinement in the county jail, from which judgment he appeals to this court.

Appellant complains of the error of the court in overruling his motion to transfer this cause to the district court of Dallas on account of the personal prejudice of the county judge against the defendant. We are of the opinion the court did not err in refusing to transfer the cause to the district court. Since the adoption of the constitutional amendment, the right to transfer on account of the disqualifications of the county judge has ceased. But, admitting the prejudice of the trial judge, is the defendant entitled to a reversal of the cause? It seems to be the law that, in the absence of statutory provisions, prejudice not based on the property interest is not a legal disqualification. McCauley v. Weller, 12 Cal. 500; Cooper v. Brewster, 1 Minn. 94, (Gil. 73;) Allen v. Reilly, 15 Nev. 452. In some states, bias or prejudice on the part of the judge is held, under statutory provisions, to be a sufficient ground for change of venue. McGoon v. Little, 7 Ill. 42; Curran v. Beach, 20 Ill. 259; Goldsby v. State, 18 Ind. 147; Vanderkarr v. State, 51 Ind. 91; Berner v. Frazier, 8 Iowa, 77; Turner v. Hitchcock, 20 Iowa, 310; Runals v. Brown, 11 Wis. 193; Ex parte Curtis, 3 Minn. 274, (Gil. 188;) In re Peyton, 12 Kan. 398. But the prejudice must be against the person, and not the cause or defense of a party. Bent v. Lewis, 15 Mo. App. 40. In California, where the statute allows a change of venue "where there is reason to believe an impartial trial cannot be had therein," also "when, from any cause, the judge is disqualified," the court say the exhibition by a judge of partisan feeling, or the unnecessary expression of an opinion upon the justice of a controversy, though undecorous and improper, and calculated to bring the administration of justice into contempt, is not sufficient to authorize a change of venue." Its liability to abuse has induced many states to refuse to allow such a disqualification. The earnestness of a judge in cutting off frivolous objections, or forcing unwilling defendants to trial, especially in cases involving much feeling, may be easily mistaken for personal prejudice. Texas has no such judicial disqualifications, (article 569, Code Crim. Proc., declaring that no judge shall sit in any case where he may be the party injured, or where he has been of counsel, or where he is related by consanguinity or affinity within the third degree to the accused or injured party;) and the change of venue is limited to felony cases, and does not include the prejudice of the judge, (Code Crim. Proc. arts. 576,¹ 578.²)

But while it is true that it may not be a disqualification, yet such a motion as the one in the record, distinctly specifying the grounds upon which it is based, should invoke from the court a very careful scrutiny of all the proceedings, to see that no injustice has been done to defendant's rights.

In examining the specific grounds upon which the charge of prejudice was predicated, we find that on the first trial of this cause, the jury having assessed a fine of $250 against defendant, the court, of its own motion, as he stated from the bench, set aside the verdict, as totally inadequate, and granted a new trial. Appellant applied for a new trial, and the trial judge granted it. The fact that he refused to grant it on the grounds set out in appellant's motion, but granted it for a reason satisfactory to himself, does not affect the matter. If, however, it had appeared that the remarks of the court were made in the presence of persons subsequently impaneled as jurors in this cause, this case would be reversed.

Again, the fact that the court immediately after setting aside the verdict, raised the defendant's bond from $2,000, which he was unable to give, to $3,000, thus insuring his being detained in custody, cannot reverse this case. Defendant had a sufficient remedy by habeas corpus to reduce bail.

Nor does the fact that he compelled ____, attorney for defendant, to testify on the first trial, and caused him forthwith to be arrested for perjury, of which he was subsequently acquitted in the district court, constitute any ground for a reversal of this case. The record does not show that the evidence sought by the state from said attorney was of a confidential nature, and it was not proper testimony, or that defendant's rights in this case were in any way prejudiced by the arrest and acquittal of his attorney prior to this trial.

2. Appellant further complains of the error of the court in overruling his motion

to appoint jury commissioners to select the jury by which he was to be tried. We are aware of no statute of this state that gives every individual a right to have jury commissioners appointed for his individual benefit, although he may believe the sheriff is prejudiced against him. The statute requires jury commissioners to be appointed by the county court, at the first term after December 31st and June 30th, to select jurors to serve at the...