State Et Rel. Johnson v. Thomson

• Decision Date: 29 September 1948
• Docket Number: Cr. No. 212.
• Citation: 34 N.W.2d 80,76 N.D. 125
• Parties: STATE et rel. JOHNSON, Attorney General, v. THOMSON, District Judge, et al.
• Court: North Dakota Supreme Court

76 N.D. 125

34 N.W.2d 80

STATE et rel. JOHNSON, Attorney General,

v.THOMSON, District Judge, et al.

Cr. No. 212.

Supreme Court of North Dakota.

Jan. 22, 1948.

Rehearing Denied Sept. 29, 1948.

Application by the State, on the relation of Nels G. Johnson, Attorney General, for a supervisory writ to review the action of Harold P. Thomson, a Judge of the Second Judicial District, in presiding as trial judge in a criminal action in the District Court of Walsh County against Leonard Maresch, represented by his attorney William T. DePuy, accepting defendant's plea of guilty of manslaughter in the second degree on the recommendation of Wallace E. Warner, State's Attorney of such county, and pronouncing sentence and judgment of conviction on such plea.

Proceeding dismissed.

Syllabus by the Court.

The laws of North Dakota (N.D.R.C.1943, 29–1513 to 29–1518 inclusive) provide: (1) That ‘When either party to a criminal action pending in any of the district courts of this state shall file an affidavit stating that he has reason to believe and does believe that he cannot have a fair and impartial trial or hearing before the judge presiding at the term of court at which such action is to be tried, by reason of the bias and prejudice of such judge, the judge shall proceed no further in the action and thereupon shall be disqualified to do any further act in the cause.’Section 29–1513.(2) That ‘Upon the filing of such affidavit, the clerk shall give notice immediately to the judge who is disqualified by delivering to him a copy of such affidavit.Another copy thereof shall be forwarded promptly to the clerk of the supreme court.’29–1514.(3) That ‘Upon receipt of an affidavit of prejudice from the clerk of the district court of any county in this state, the supreme court shall designate a district judge to act in the place and stead of the judge disqualified.’29–1515.

It is held that under such laws:

1.The disqualification of a judge is accomplished when an affidavit of prejudice is timely filed and from the time such affidavit is so filed the judge against whom it is directed has no authority to do any further act in the case.

2.The authority of the judge who has been designated to act in the place and stead of a disqualified judge is limited to the particular case for which he has been designated; it does not extend to other cases pending in the court in which the particular case is pending.

3.A judge who has been designated by the Supreme Court to act in the place and stead of the judge disqualified becomes the judge of the court in which such action is pending for all purposes in such action, and remains the judge in such case until it has been finally disposed of in the court in which the judge has been designated to act or until his designation is rescinded.

4.While the case remains pending in the court in which the substitute judge has been designated to act, he alone is duly authorized to act as judge in the case.The authority of all regular judges of such court is suspended as long as such designation remains in force and it is error for any of such regular judges to perform any judicial act in such case.

5.Where an affidavit of prejudice has been timely filed in a criminal action against a regular judge of a district court and a judge of another judicial district has been designated by the Supreme Court to act in the place and stead of the disqualified judge, only the judge designated by the Supreme Court is authorized to accept a plea of guilty and pronounce sentence and judgment upon the defendant in such criminal action and it is error for any of the regular judges of the court in which such criminal action is pending to act as judge and accept a plea of guilty of the defendant and pronounce sentence and judgment upon him.

6.The action of such regular judge in accepting the plea of guilty and pronouncing sentence and judgment upon the defendant is erroneous and the judgment of conviction is voidable; but such action and judgment are not void; they may not be attacked collaterally and are not reviewable except at the instance or upon the consent of the defendant.

7.The defendant in such criminal action is put in jeopardy by the plea of guilty and the judgment of conviction and such judgment is a bar to any further prosecution for the offense charged in the Information filed against the defendant, and to which he entered a plea of guilty.

8.The fact that the proceedings had when the plea of guilty was interposed and the judgment of conviction was pronounced were irregular and erroneous and that as a consequence such judgment was rendered voidable does not destroy the effectiveness thereof as a bar to further prosecution.Such judgment constitutes a bar to further prosecution regardless of such error and irregularity.

NUESSLE, J., dissenting.Nels G. Johnson, Atty. Gen., and P. O. Sathre, C. E. Brace, and Richard P. Rausch, Asst. Atty. Gen., for relator.

Wallace E. Warner, State's Atty., and Wm. T. DePuy, both of Grafton, and Geo. F. Shafer, of Bismarck, for respondents.

CHRISTIANSON, Chief Justice.

The Attorney General of North Dakota has applied to this court for a supervisory writ to review the action of the Honorable Harold P. Thomson, one of the judges of the Second Judicial District in this state, in presiding as trial judge in a certain criminal action in the District Court of Walsh County against one Leonard Maresch, and in pronouncing sentence and rendering judgment in said criminal action.

The said Leonard Maresch was charged with the commission of the crime of murder in the first degree and was held to answer in the District Court of Walsh County.The Honorable C. W. Buttz, one of the judges of the Second Judicial District, was the presiding judge at the term of the District Court at which the action was about to be tried.On March 26, 1945, the said Leonard Maresch filed what is commonly known as an affidavit of prejudice against said Judge Buttz under the provisions of N.D.R.C.1943, Section 29–1519.Thereafter, such proceedings were had pursuant to law that on March 27, 1945, an order was entered by the Supreme Court of North Dakota appointing and designating the Honorable P. G. Swenson, one of the judges of the First Judicial District, as presiding judge in said criminal action.The action came on for trial in April 1945 before a jury and resulted in a verdict finding the defendant guilty of murder in the first degree.The defendant appealed from the judgment of conviction and the Supreme Court reversed the judgment of conviction for errors occurring at the trial and remanded the case for a new trial.State v. Maresch, 75 N.D. 229, 27 N.W.2d 1.The action appeared upon the calendar of a term of the District Court of Walsh County called to convene July 7, 1947.The Honorable C. W. Buttz, the judge against whom the defendant had filed an affidavit of prejudice in the first instance, was the presiding judge at such term.Some question having arisen between counsel for the respective parties as to what judge was authorized to preside upon the retrial of the said criminal action, the Attorney General and the State's Attorney of Walsh County duly presented an application to the Supreme Court asking that such Court(under its power of general superintending control over inferior courts, N. D. Const., Sec. 86) determine whether the order formerly entered by said Supreme Court designating Honorable P. G. Swenson as trial judge in said criminal action remained in force and if not in force, that the Supreme Court designate a judge to act as trial judge in said action.Such application came on for hearing pursuant to notice.Upon the hearing the Attorney General and the State's Attorney of Walsh County appeared for the state, and the defendant, Leonard Maresch, appeared by his counsel and filed a written return wherein he objected to the said Honorable P. G. Swenson continuing to act as presiding judge upon the trial of said action and asked that the Supreme Court designate some district judge other than the said Judge Swenson to act as trial judge.Before such application was determined, indeed before it was fully submitted, Judge Swenson submitted to and filed with the Supreme Court a written statement to the effect that because of illness it would be impossible for him to preside upon the trial of the said criminal action at the term appointed to convene on July 7, 1947, and, therefore, he asked that he be relieved of the duty of acting as judge in such case.It then appeared to the satisfaction of the Supreme Court that in order that said criminal action might be tried expeditiously, it would be necessary in any event that some judge other than the said Judge Swenson be designated as trial judge in said criminal action.Accordingly, on June 20, 1947, an order was made relieving said Hon. P. G. Swenson from all duties as presiding judge in said criminal action and further ordering that the Hon. W. H. Hutchinson, one of the judges of the Third Judicial District, be designated and appointed as judge to preside upon the trial of said criminal action in the District Court of Walsh County, North Dakota, and to do and perform all acts authorized by our laws to be performed by the presiding judge upon the trial and determination of said action.

Judge Hutchinson entered upon the discharge of his duties as presiding judge in said criminal action.In the afternoon of July 8, 1947, he presided at a session of the District Court of Walsh County held in the Court Rooms of said Court in the Court House in Walsh County.At such session he called the case of the State of North Dakota against Leonard Maresch.The Hon. Nels G. Johnson, Attorney General of the State of North Dakota, and Wallace E. Warner, State's Attorney of Walsh County, were present in court and appeared as attorneys for the State of North Dakota and the defendant, Leonard Maresch, was present in person and represented by his...