Rea v. State

• Decision Date: 07 December 1909
• Citation: 105 P. 384,3 Okla.Crim. 276,1909 OK CR 159
• Parties: REA v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

105 P. 384

3 Okla.Crim. 276, 1909 OK CR 159

REA v. STATE.

Court of Criminal Appeals of Oklahoma

December 7, 1909

Syllabus by the Court.

Under section 6647, Snyder's Comp. Laws 1909, and section 15 Bunn's Const., a motion for a change of judge on account of the bias or prejudice of a county judge is in time if presented before the trial begins.

Section 15, Bunn's Const., provides that right and justice shall be administered without prejudice. Under this provision, when a motion, properly verified, is made before the trial begins for a change of judge upon the ground of the bias or prejudice of the trial judge, it is the constitutional right of the party making it that it shall be granted.

Appeal from Pontotoc County Court; Joel Terrell, Judge.

Will Rea was convicted of unlawfully selling intoxicating liquor and he appeals. Reversed and remanded.

Crawford & Bolen, B. C. King, and Galbraith & McKeown, for appellant.

FURMAN P.J.

First. On the 21st day of February, 1908, the defendant filed the following motion in the county court of Pontotoc county:

"The State of Oklahoma v. Will Rea. Comes now the defendant Will Rea, in the above entitled cause, and states upon his oath that by reason of the bias and prejudice of the presiding judge, Joel Terrell, he cannot obtain a fair and impartial trial, and respectfully asks for a change of judge in this cause. W. C. Rea.

"Subscribed and sworn to before me this 21st day of February, 1908. W. H. Braley, Notary Public."

This motion was overruled by the court, to which ruling an exception was reserved. Section 6647, Snyder's Compiled Laws of Oklahoma of 1909, is as follows: "If the defendant shall, before witnesses are subp naed, make affidavit that he cannot have a fair and impartial trial before the county judge by reason of the bias or prejudice of the judge or that the judge is a material witness in the cause, or is related to the party in interest, such county judge shall thereby be disqualified to try such cause, and when the county judge is disqualified to try any criminal cause pending in the county court, the county attorney and defendant may agree on a special judge to preside in his stead; but if they fail so to do, the disqualified judge shall proceed to select a special judge as follows: He shall nominate an odd number of persons not less than three, having the qualifications of a county judge, if there be so many qualified to hold such office residing in the county, or in attendance upon the court, and the parties may alternately challenge such nominees until they are reduced to one, who shall be the special judge, and shall preside in the cause or other matter with authority to do any act that the regular judge, if not disqualified, might have done in such case; but if there be not so many as three qualified persons residing in the county or in attendance upon the court who may be nominated by the disqualified judge, he shall appoint a qualified person to act in his stead, and such person shall have full power to perform the duties of county judge in such cause."

The record is silent as to the ground upon which the motion for a change of judge was overruled, but we presume that it was because the motion was filed after the witnesses in the case had been summoned. This requires a consideration of section 15 of Bunn's Constitution of Oklahoma, which is as follows: "The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice." Substantially the same clause is contained in the Constitution of Idaho. This provision came before the Supreme Court of that state for consideration in the case of Day v. Day, 12 Idaho, 556, 86 P. 531, and the court said: "It is contended by counsel for appellant that under the provisions of section 18, art. 1, of the Constitution of Idaho, 'the people have prohibited a court from trying a case in which he is prejudiced by or for either party.' Said section is as follows: 'Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay or prejudice.' They also cite paragraph 40 of the Magna Charta, which reads: 'To none will we sell; to none will we deny or delay right or justice.' They contend through that constitutional provision that the people have declared that justice shall be administered, not only without sale, without denial, and without delay, but also without prejudice, and contend that the legislative power to pass laws regulating the change of venue is limited by constitutional provisions respecting the subject. 4 Ency.

Pl. & Pr. p. 377. It is contended that said section of the Constitution is self-acting, self-executing, and requires no legislative provision for its enforcement, and cannot be abridged or modified by any legislative or judicial act. There is no question but what...