State v. Bitz

• Decision Date: 19 July 1965
• Docket Number: No. 9436,9436
• Citation: State v. Bitz, 404 P.2d 628, 89 Idaho 181 (Idaho 1965)
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Joseph Martin BITZ, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 628

404 P.2d 628

89 Idaho 181

STATE of Idaho, Plaintiff-Respondent, v.Joseph Martin BITZ, Defendant-Appellant.

No. 9436.

Supreme Court of Idaho.

July 19, 1965.

Jerry V. Smith, Lewiston, for appellant.

Allan G. Shepard, Atty. Gen., and M. Allyn Dingel, Jr., Asst. Atty. Gen., Boise, Roy E. Mosman, Pros.Atty., Lewiston, for respondent.

KNUDSON, Justice.

During the early morning hours of May 20, 1962, defendant-appellant and one Howard Vindhurst were discovered hiding in a ventilator on the roof of Montgomery-Ward Store building in Lewiston, Idaho.There was evidence that the store had been unlawfully entered; the safe had been moved; some tools and drill bits were littered around the safe.Defendant and Vindhurst were arrested and later charged with first degree burglary.

On the way to the police station from the roof of the store building where he was found, defendant disclosed to the officer in charge of him where defendant's car was parked.The car was later moved to the police station and searched.

Although defendant and Vindhurst were separately charged, their cases were consolidated for trial, which commenced February 4, 1963 and resulted in a mistrial.Thereafter this case against defendant was again set for trial, which commenced October 28, 1963 and resulted in a judgment of conviction entered November 6, 1963, from which this appeal is taken.

Under appellant's first assignment it is contended that 'the trial judge erred in failing to acknowledge the properiety of defendant's affidavit of prejudice and refusing to recognize that he was thereby disqualified in the case and ousted of jurisdiction.The issue thereby presented is governed by I.C. § R 1-1801, the pertinent portion of which provides:

'4.When either party makes and files an affidavit as hereinafter provided, that he has reason to believe, and does believe, he cannot have a fair and impartial hearing or trial before a district judge by reason of the bias or prejudice of such judge.Such affidavit may be made by any party to an action, motion or proceeding, personally, or by his attorney or agent, and shall be filed with the clerk of the district court in which the same may be pending at least five (5) days before the day appointed or fixed for the hearing or trial of any such action, motion, or proceeding, (providing such party shall have had notice of the hearing of such action, motion, or proceeding for at least the period of five (5) days, and in case he shall not have had notice for such length of time, he shall file such affidavit immediately upon receiving such notice).Provided further that no such affidavit may be filed in any case after any contested matter in relation to such litigation has been submitted for decision to any judge sought to be disqualified, excepting that where a new trial is granted or ordered by either the district court or the Supreme Court, such affidavit may be filed as in the first instance.Upon the filing of the affidavit, the judge as to whom said disqualification is averred shall be without authority to act further in the action, motion, or proceeding, * * *.'

The undisputed facts are that The Honorable John W. Cramer, district judge, presided during the trial of the defendant and Vindhurst which commenced February 4, 1963 and terminated February 7, 1963 upon the granting of a motion for mistrial.On March 8, 1963defendant moved that his case be continued over the term, which motion was granted.

On October 7, 1963, counsel for defendant filed his motion for an order permitting him to withdraw as counsel for defendant.On October 25, 1963the court granted counsel's said motion to withdraw as defendant's attorney.The minutes of the court of that date show that the court'then appointed Jerry V. Smithcounsel for defendant.'

Defendant's affidavit of prejudice by virtue of which defendant sought to disqualify Judge Cramer was executed and served upon the prosecuting attorney on October 25, 1963.It was filed with the clerk of the district court on October 28, 1963.Respondent contends that said affidavit was not timely filed and consequently did not disqualify Judge Cramer from presiding at the trial which commenced October 28, 1963.

This record on appeal does not disclose exactly when the case against defendant was set for trial.However, we are led to believe from the statement of facts in appellant's brief that the setting of this case for trial occurred on the same date (October 25, 1963) that the court granted counsel's motion to withdraw as defendant's attorney and thereafter, on the same date, appointed the same counsel as defendant's attorney.It is stated in respondent's brief that 'appellant's opening brief reviews the proceedings in the instant matter.His statement is essentially correct * * *.'In this connection we have noted that respondent acknowledges that this record does not disclose any order or pronouncement of the trial court as to setting the case for trial or giving notice thereof to defendant.The case was set for trial to commence Monday, October 28, 1963.However, this record does not contain any showing that defendant or his counsel had any notice of the trial date prior to October 25, 1963.

On October 28, 1963, prior to the commencement of trial, defendant filed his affidavit of prejudice seeking to disqualify Judge Cramer under the provisions of I.C. § R 1-1801.Defendant also at that time filed his motion for a continuance of the trial with supporting affidavit, together with a motion for change of venue and supporting affidavit.Copies of the affidavit of prejudice and motion for change of venue were served upon the prosecuting attorney on October 25, 1963.Each of said motions were summarily denied.When defendant requested that the affidavit of prejudice be considered, the court stated:

'I don't think any argument is necessary.I don't think it is available to the defendant.I have already heard part of this case and this is an affidavit based on a so-called justice court affidavit.There is nothing specific in it and having heard the case once and not having gone to the Supreme Court--If it had been reversed at the Supreme Court, then it would have been available.I don't think it is now available to the defendant, so the motion will be denied.'

The affidavit is in proper form and complies with the recital requirements of the hereinbefore quoted portion of I.C. § R 1-1801.It is not claimed that Judge Cramer ruled on any contested matter in the instant case and the parties have, in that connection, stipulated as follows:

'IT IS STIPULATED by and between the parties, through their counsel, that the District Court ruled on no matters involving the discretion of the Court from the inception of the case to, and including, the 25th day of October, 1963, other than for such rulings as may have been made during the course of the trial in February, 1963, which trial resulted in mistrial.'

Respondent presents two contentions relative to this affidavit of prejudice: (1) That a 'new trial' is not here involved and defendant was not entitled to file such affidavit, and (2) it was not timely filed.

As concerns the first of these contentions it is true that a 'new trial' was not granted and is not here involved.In fact no trial had been had.The record shows that the proceedings which had taken place during February 1963 were decelared to be a 'mistrial' which is in essence a conclusion of law that no trial had taken place.Many authorities supporting this statement are cited in respondent's brief, among them being Vilander v. Hawkinson(1958), 183 Kan. 214, 326 P.2d 273, wherein it is stated:

'In other words, a mistrial is a nugatory trial and is equivalent to no trial, whereas a new trial recognizes and proceeds upon the assumption there has been a complete trial which, for sufficient reasons, has been set aside.'

In Ex Parte Alpine, 1928, 203 Cal. 731, 265 P. 947, the court said, 'a mistrial and a new trial are not the same thing in name or effect.A mistrial is equivalent to no trial.'In 58 C.J.S.pp. 833-834, the term 'mistrial' is defined as

'An erroneous, invalid, or nugatory trial; * * * a trial legally of no effect by reason of some error in the proceedings; a proceeding which has miscarried and the consequence is not a trial; a failure of trial. * * *

'In legal effect a mistrial is equivalent to no trial at all, and is declared because of some circumstance indicating that justice may not be done if the trial continues.'

See alsoVol. 27 Words and Phrases, Perm.Ed., p. 620.

We conclude that the proceedings which were terminated by the order granting defendant's motion for mistrial did not constitute a trial and that upon the entry of such order the case reverted to the status it had prior to the commencement of such proceedings.Since the stipulation hereinbefore referred to establishes that Judge Cramer had not ruled upon any contested matter involving the discretion of the court from the inception of the case to and including October 25, 1963, except rulings made during the proceeding which was declared to be a mistrial, we conclude that defendant was entitled to file the affidavit of prejudice and the court erred in holding that the right to file such affidavit was not at that time available to defendant.

In considering the contention that the affidavit was not timely filed, we must consider that said section provides that if the party concerned shall not have had five days notice of the trial, he shall file such affidavit immediately upon receiving such notice.We have hereinbefore stated that there is no showing that defendant or his counsel had any notice of the trial date prior to October 25, 1963, which date was the last Friday in October.Under these facts it is clear that defendant was required to file such affidavit immediately upon receiving such notice.We must therefore construe the meaning of the word 'immediately' as...