Lester v. Commonwealth

• Decision Date: 02 June 1933
• Citation: 250 Ky. 227
• Parties: Lester v. Commonwealth et al.
• Court: United States State Supreme Court — District of Kentucky

250 Ky. 227

Lester v. Commonwealth et al.

Court of Appeals of Kentucky.

Decided June 2, 1933.

1. Judges. — In determining sufficiency of affidavit to support motion to require judge to vacate bench, truthfulness of facts

stated cannot be questioned by judge.

2. Judges. — Affidavit supporting motion to require judge to vacate bench must state facts showing judge is so prejudiced that he cannot give affiant fair trial.

3. Judges. — In disbarment proceeding, affidavit disclosing animosity between defendant and regular judge in abatement of vice conditions stated facts showing such prejudice of regular judge as to require him to vacate bench.

4. Judges. — Trial judge's refusal to vacate bench in disbarment proceeding held reversible error where defendant's affidavit stated facts showing prejudice of judge.

Appeal from Campbell Circuit Court.

J.W. CAMMACK, STEPHENS L. BLAKELY and BLAINE McLAUGHLIN for appellant.

L.J. CRAWFORD, L.J. DISKIN and FRED B. BASSMANN for appellees.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Reversing.

This is a disbarment proceeding. The charges against the appellant are contained in nine specifications. On his trial, he was found not guilty of two of such specifications, but guilty of the other seven. Thereupon a judgment of disbarment was entered. He has appealed.

In view of our conclusions as to the timely motion made by the appellant to require the circuit judge, the Honorable A.M. Caldwell, who presided over his trial to vacate the bench, we will not consider any of the other questions involved on this appeal and concerning them we express no opinion.

The affidavit of appellant filed in support of his motion to require Judge Caldwell to vacate the bench is in substance as follows: After reciting that he was a member of the bar of Campbell county and had been such for about five years preceding the institution of this prosecution, the appellant charged that Judge Caldwell was not and had not been for over two years on friendly terms with him, their relationships being strictly limited to the necessary transaction of such legal business as appellant had with the court; that the feeling which existed between him and the judge was so violent and rancorous as that said judge could not give him a fair and impartial trial. Appellant then stated that the reasons for his statements as to the described feeling between him and the judge were these During the summer of 1930, appellant instituted in the Campbell circuit court, over which Judge Caldwell presided, a number of actions in equity pursuant to and by virtue of section 3941m-1 et seq. of the Kentucky Statutes, seeking to abate certain bawdy houses; that in such actions he obtained temporary injunctions which were violated by the owners of said bawdy houses; that these violations occurred during the summer vacation of the court, because of which the appellant had to appear before Judge Caldwell in chambers in order to obtain the necessary rules and writs to punish such violators of such injunctions; that upon the second occasion when appellant appeared before Judge Caldwell to obtain such rules or writs, Judge Caldwell exclaimed to this affiant: "Quit bothering me about these damn whore house cases;" that appellant thereupon replied that he was only trying to do his duty; that he had at all times accorded the court the respect and courtesy due his office and that he intended no disrespect or discourtesy; that he was proceeding only as he had a right to do; and that thereupon Judge Caldwell responded that the appellant had better treat him with the respect and courtesy due his office or appellant would be "attended to"; that in these actions to abate these bawdy houses and after the temporary injunctions had been obtained, the keepers of the bawdy houses took up with the appellant the matter of settling said cases, including the amount of fee to be paid appellant for bringing and prosecuting the suits as the statute allows; that appellant agreed with the attorneys for these bawdy houses that he would accept as his fee the sum of $250 in each case, which, being paid, the information concerning such agreed settlement was forthwith conveyed to Judge Caldwell who acquiesced in the same, and that thereafter judgments approved by Judge Caldwell were entered in these bawdy house cases adjudging these fees and acknowledging their receipt; that all this had been done in every case involved prior to the convening of the court for its fall term of 1930; that notwithstanding Judge Caldwell's knowledge of these facts as to the fees in these bawdy house cases and his approval thereof, he on impaneling the grand jury of Campbell county in October, 1930, charged that body substantially as follows:

"Since the impaneling of the last grand jury, crime conditions in Newport and other communities of Campbell county have not materially increased, and it is gratifying to note that the criminal element which infested Newport in the past continues to give the city a wide berth.

"Notwithstanding the adverse publicity of which Newport has been the target, it is a fact and the records will show it, that crime conditions here are so below those in other states, and the good citizens are well aware of these conditions, regardless of so-called camouflage or smoke screens which have been used in an effort to belittle the splendid work of the public officials.

"It is a matter which I desire you to thoroughly investigate pertaining to the circumstances and real motives in the filing of a number of injunction suits in an alleged cleanup drive against women operators of alleged disorderly houses in Newport. * * *

"Rumors are current that graft and protection money have been paid in connection with these injunction suits and the operators of these houses have had money extorted from them. It is also rumored that attorneys have been involved in these graft charges. This is a serious matter and nothing should be left undone in making a thorough probe. If the evidence warrants, indictments should be returned against all concerned in any unlawful practices. * * *

"I wish further to say that it has been rumored that attorneys involved in court litigations have accepted fees in these cases which were outside of the court records. This is purely a violation of the law inasmuch as these cases have not finally been decided and no disposition of them has been made and judgment rendered against these women, no fees can be fixed for these attorneys, and it is improper if not...