State v. Banta

• Decision Date: 04 November 1908
• Docket Number: 17,333
• Citation: 47 So. 538,122 La. 235
• Court: Louisiana Supreme Court
• Parties: STATE v. BANTA

47 So. 538

122 La. 235

STATE v. BANTA

No. 17,333

Supreme Court of Louisiana

November 4, 1908

Louis Banta was charged with crime. Order to recuse the judge was denied, and accused applies for writs of certiorari and prohibition. Order reversed, and case remanded.

Walter Lemann, John Howell Pugh, and Edward Nicholls Pugh, for relator.

Respondent Judge, pro se.

OPINION

MONROE J.

Statement of the Case.

It appears from the petition herein that relator was charged with an offense for which he was to be tried by the judge (without a jury), and, having been arraigned pleaded "not guilty"; that he thereafter moved to recuse the judge, upon the ground that he is his (mover's) personal enemy and is so biased and prejudiced as to be incapable of giving him (mover) a fair and impartial trial, which motion was overruled by the judge himself, on the ground (as stated by him) that "the allegations contained in the motion are frivolous -- they are without foundation in fact or law." And thereupon relator made to this court the application for writs of certiorari and prohibition which is now being considered, alleging that the judge was without jurisdiction to act upon the motion for his recusation, and praying that he be prohibited from further proceeding, etc.

The judge, by way of return, says, "that the motion to recuse assigns no legal ground therefor, and that the allegations therein contained are untrue; * * * that, if it were a fact that there was any cause to prevent him from giving the defendant a fair and impartial trial, it would need no suggestion or motion to induce him to recuse himself," etc.

Opinion.

Prior to 1858 there was no statute law in this state providing for the recusation of a judge in a criminal case; the only law upon the subject of recusation being that contained in the Code of Practice, which Code, by its terms, is confined in its application to civil cases. By Act No. 303, p. 218 of 1858, § 1, it was declared:

"That any judge may be recused or may recuse himself, in criminal cases, if said judge be connected by blood or marriage with any person charged with any offense against the laws of the state."

This provision appears as section 1067 of the Revised Statutes, and as such was amended by Act No. 35, p. 35, of 1877, which reads in part:

"Section 1. That section 1067 of the Revised Statutes * * * be amended and re-enacted so as to read as follows: Any judge may be recused, or recuse himself, in criminal cases: First, if said judge be connected by blood or marriage with the accused. Second, if said judge be related to the party injured by the accused within the fourth degree, or if he be the father-in-law, son-in-law, or brother-in-law of the party injured by the accused. Third, if said judge has been employed as prosecuting attorney, or for the defense, before his election or appointment as judge."

By Act No. 40, p. 38, of 1880, it was provided:

"Section 1. * * * That any judge of the district court, elected, or who may hereafter be elected, under the Constitution adopted and ratified in 1879, shall be recused for either of the following causes: First, his being interested in the cause; provided, that in all civil and criminal causes, in which the state, or the parish, or political or religious corporations are interested, it shall not be sufficient cause to challenge a judge who may have cognizance of the case to allege that he is a citizen or inhabitant of the state, or the parish, or a member of said political or religious corporations, or that he pays any state, parish, or city tax. Second, his being related to one of the parties within the fourth degree. Third, his having been employed or consulted as advocate in the cause. Fourth, his being the father-in-law, son-in-law, or brother-in-law of one of the parties. Fifth, his having rendered definitive judgment in the cause in any other court."

The statutes above referred to were followed by Act No. 35, p. 48, of 1882, which reads:

"Section 1. * * * That article 338 of the Code of Practice be so amended and re-enacted as to read as follows: The causes for which a judge may be recused are: 1. His being interested in the cause; provided, that, in all civil and criminal causes in which the state, the parishes, or political or religious corporations are interested, it shall not be sufficient cause to challenge the judge or justice of the peace who may have cognizance of the case (nor the sheriff or the executive officer, or any of the jurors who are called to serve in the case), to allege that they are citizens or...