People ex rel. Burke v. District Court of Third Judicial Dist.

• Decision Date: 17 August 1915
• Docket Number: 8696.
• Court: Colorado Supreme Court
• Parties: PEOPLE ex rel. BURKE et al. v. DISTRICT COURT OF THIRD JUDICIAL DIST. et al.

152 P. 149

60 Colo. 1

PEOPLE ex rel. BURKE et al. v. DISTRICT COURT OF THIRD JUDICIAL DIST. et al.

No. 8696.

Supreme Court of Colorado, En Banc.

August 17, 1915

Original application for prohibition by the State, on the relation of John Burke and Charles Haines, against the District Court of the Third Judicial District and Hon. Granby Hillyer, a judge thereof. Writ to issue.

Gabbert C.J., and Garrigues, J., dissenting.

John L. East, of Walsenburg, A. M. Belcher, of Charleston, W. Va., and Horace N. Hawkins, of Denver, for petitioner.

Fred Farrar, Atty. Gen., and Norton Montgomery and Frank C. West Asst. Attys. Gen., for respondents.

WHITE J.

This is an original proceeding for a writ of prohibition against the district court of the Third judicial district and Hon. Granby Hillyer, one of the judges thereof sitting in and for the county of Huerfano, from proceeding with the trial of a cause there pending, wherein the relators herein, John Burke and Charles Haines, are charged with having murdered one P. P. Lester in said county on the 29th day of April, 1914, and to require the said court or the aforesaid judge thereof to change the venue or call in another district judge to preside as the judge of said court, at further hearings in the case, as provided by section 6963 et seq., R. S. 1908. An order to show cause why the prayer of the complaint should not be granted was entered of record, and subsequently served, whereupon Hon. Granby Hillyer, judge of the district court aforesaid, interposed a motion to dismiss the proceedings herein for reasons stated as follows: First, that this court has not jurisdiction, for the reason that said petition does not show that the matters at issue are publici juris; second, that the petition does not state facts to entitle the petitioner to the relief demanded; and, third, that said petition does not show that the application for a change of venue was made in apt time.

The propriety of the remedy invoked is not questioned. On the contrary, it is conceded that, if the facts set forth in the affidavits in support of the petition for change of judge are sufficient in law to disclose the prejudice, disqualification, or incompetency of Judge Hillyer, as provided by statute, and the matter involved in the criminal case pending against relators is publici juris, and the application for change of judge was made in apt time, the relief asked should be granted herein. We will therefore, without more than incidental discussion of the remedy, proceed to consideration and determination of the questions raised and argued.

1. We have no doubt the matters involved in the criminal case in which the change of the judge is sought are publici juris. In fact, the entire people of the state in their sovereign capacity are the plaintiffs therein, and the right of society to have its laws, in relation to certain crimes, observed and enforced is involved. Persons are charged with, and tried for, the commission of crimes for the good of society. Public policy requires that such be done, not solely for the purpose of punishing the perpetrators of the offenses, but to the end that others may be deterred from the commission of like crimes. Nor can we conceive of anything of graver public concern than whether or not those charged with the commission of crime shall be tried before impartial tribunals free from prejudice and bias. The first ideal in the administration of justice is that the judge must be free from bias and partiality. Men are so agreed on this principle that any departure therefrom shocks their sense of justice. A party may be interested only that his particular case should be justly determined, but the state is concerned, not only for that, but also that the judiciary shall enjoy an elevated rank in the estimation of mankind. Indeed, no one can be charged with, and tried for, the commission of a grave criminal offense, but what all society, within the territorial limits of the sovereignty that prosecutes, is in some measure affected thereby. We are equally certain that when the facts of a case disclose, in the manner required by statute, that a judge is prejudiced or otherwise incompetent to hear or try a cause, but, nevertheless, proceeds in that regard, the issues are not likely to be determined and the rights of the parties properly protected and enforced in a court over which he presides. People ex rel. Lackey v. District Court, 30 Colo. 123, 130, 69 P. 597.

2. In order to determine the sufficiency of the petition for the change of judge and the affidavits in support thereof, we must consider sections 6963 and 6964, R. S. 1908. Section 6963 is as follows:

'In any criminal cause pending in any court of record of competent jurisdiction, the judge of said court shall be deemed incompetent to hear or try said cause in either of the following cases: * * * Third--When the judge is in anywise interested or prejudiced, or shall have been of counsel in the cause, such prejudice of the judge must be shown by the affidavit of at least two credible persons not related to the defendant.'

Section 6964 requires the judge, when incompetent to sit for any of the causes mentioned in the preceding section, to change the venue to some other court of competent jurisdiction in the same county, or in some other county, or to set the case down for trial at some day in term time or vacation, and notify and request the judge of some other court, having jurisdiction of a like offense, to try the case, and makes it the duty of the judge so requested to appear and hold the court at the time appointed for the trial of said cause. It therefore necessarily follows that, when a person charged with a criminal offense in this state makes an application for a change of judge in the trial of his cause and brings himself properly within the provisions of the statute providing for the change, the judge against whom the application is directed loses the right to adjudicate concerning the subject-matter in the given case, and all power in the premises except that reserved by the statute. In such case the court, with such judge presiding, is ousted of jurisdiction to proceed further with the cause, except to enter the order of recuse, change the venue to some other court of competent jurisdiction, or set the cause down for trial and notify and request the judge of some other court having jurisdiction of like offenses to try the case. Such is the construction which we have heretofore given to this statute. Erbaugh v. People, 57 Colo. 48, 140 P. 188. We have also held, in common with other courts in construing similar statutes, that no inquiry may be had as to the truth of the facts set forth in the petition and affidavits. Thus in Erbaugh v. People, supra, 57 Colo. on page 52, 140 P. on page 190, in construing this statute, we said:

'The petition and affidavits are conditions imposed by statute, upon a compliance with which, if they are legally sufficient, the defendant is entitled to a change. In such a case the judge loses jurisdiction, except to grant the change, without any inquiry into the facts. The petition and affidavit must be proper and sufficient, and the facts must be shown disclosing the prejudice of the judge. While he may pass upon the question of law involving the sufficiency of these matters, the question of the truth of the allegation is never tried. In this state, when a defendant brings himself properly within the provisions of the statute, the judge loses jurisdiction, except to grant the change, the statute relative to which is mandatory and imperative.'

And in People ex rel. Lackey v. District Court, supra, it is held that:

'Where an application for a change of place of trial is made by a defendant, based upon a ground which entitles him to the change as a matter of right, the court to which it is addressed has no discretion except to grant the application. In such cases the court is ousted of jurisdiction to proceed further with the cause than to enter the order of removal'

--and will, by prohibition, be controlled in the premises and required to enter the order which should have been made. If such is the effect of an application for a change of place of trial based upon a ground which entitles the defendant to the change as a matter of right, the same effect follows an application for a change of judge based upon a like ground, and for denial of the right in either case the same remedy is available to an injured party. In Erbaugh v. People, supra, Cantwell v. People, 138 Ill. 602, 604, 28 N.E. 964, is, together with many other cases, cited. We quote from the Cantwell Case as follows:

'The petition and accompanying affidavits complying with the statute, and such affidavits purporting to be made by reputable persons, residents of the county, not of kin to the defendant, etc., the right to a change of venue is absolute. The statute nowhere provides for the filing of counter affidavits in such cases, as it does where the ground for the change of venue is the alleged prejudice of the inhabitants of the county. It may be readily seen why such affidavits are allowed in the latter case but not in the former. In the one case, there being no objection to the impartiality of the judge, he can fairly pass upon the question as to the prejudice of the people on affidavits pro and con; but the question being, Is the judge himself prejudiced? there is, from the defendant's standpoint, no impartial tribunal to weigh the evidence and determine that issue. It is doubtless true that a statutory right to a change of venue is liable to abuse, but that fact confers no power upon courts to limit or qualify the right.'

Equally pertinent and convincing is the argument in State v. Kent, 4 N.D. 577, 62 N.W. 631, ...