State v. Bordelon

• Decision Date: 14 May 1917
• Docket Number: 22496
• Citation: 75 So. 429,141 La. 611
• Court: Louisiana Supreme Court
• Parties: STATE v. BORDELON

75 So. 429

141 La. 611

STATE v. BORDELON

No. 22496

Supreme Court of Louisiana

May 14, 1917

SYLLABUS

(Syllabus by the Court.)

The judge may be recused before trial, or just as soon as the defendant becomes aware of the cause of recusation during the course of the trial. He cannot be recused after trial and judgment.

The refusal to grant a continuance, complained of for the first time in a motion for a new trial, or on appeal, is too late. A bill of exceptions must have been reserved on the refusal to continue; otherwise, accused is deemed to have waived his right.

Questions of fact will not be considered by the appellate court.

Newly discovered evidence which merely tends to impeach the credibility of the witnesses examined on the trial is unavailing in securing a new trial.

Lester L. Bordelon, W. E. Couvillon, and A. J. Bordelon, all of Marksville, for appellant.

A. V Coco, Atty. Gen., and Gaston L. Porterie, Dist. Atty., of Marksville (Vernon A. Coco, of Marksville, of counsel), for the State.

OPINION

SOMMERVILLE, J.

Defendant, a physician of the parish of Avoyelles, and president of the parish board of health, is charged in a bill of information, filed January 31, 1917, with retailing spirituous liquors in the town of Cottonport, on August 31, 1916, without having first obtained a license from the police jury of the parish, or from the town council. He was convicted and sentenced, and he has appealed.

After the trial of the cause, but before sentence was pronounced, the defendant moved to recuse the presiding judge on the ground that:

He 'was incompetent to take cognizance of this case and try the same, and he is still in competent to pass sentence upon this mover, because this cause was initiated and mover arrested on or about September 19, 1916, during the incumbency of the presiding judge as district attorney of this district, who was representing the state of Louisiana, one of the parties to this cause; that the affidavit against this mover was made with the knowledge and at the instance of the presiding judge during his said incumbency as district attorney for said district, and he interested himself at the time in behalf of the state in furthering the prosecution of this mover and instituting this cause on the docket of this court and marshaling the evidence upon which the charge against this mover is based; and mover is now informed and believes, and therefore alleges, that the district attorney brought the case before the grand jury which held its session just prior to the presiding judge assuming his position as judge of this court, * * * that the said presiding judge's participation in the prosecution of this mover, as district attorney, on the charge for which he was tried, rendered him incompetent to sit as judge in the case and brings him under the operation of the law providing for the recusation of judges who have been employed as advocates in the cause, or consulted therein by one of the parties thereto, he then being employed by the state of Louisiana, and in fact consulted therein by the state, one of the parties to this cause, and he should have recused himself and have appointed a judge ad hoc to try the cause, and he should still recuse himself therein.

'Your mover further avers that the facts constituting the cause for recusation of the presiding judge were not known to the mover until the only prosecuting witness, Wheeler Wilson, testified on the trial of the cause. * * * And it was only upon the trial of this cause, when the prosecuting witness, Wheeler Wilson, was on the witness stand, and was being cross-examined by your mover's counsel, that the facts were disclosed by the said witness of the extent of the said presiding judge's knowledge of, and participation in, the cause, and it was for this reason that your mover did not move to recuse the presiding judge at the time of the calling of the case for trial'; that the then district attorney had interested himself further in the case 'by promising the witness a portion of the fine that would be imposed upon the conviction of this mover.'

The trial judge found that the motion had been filed after trial and conviction and was too late; and he declined to grant the motion. The district judge said:

'The case was called by the district attorney one month before trial. The defendant and his attorney were aware of the fact that the now presiding judge, the district attorney at the time of the institution of this suit by the state, had knowledge of the facts relative to this case; knew that he had naturally participated in the preparation of the prosecution; knew that the district judge, formerly the district attorney, had stated, in open court, to all the attorneys, at regular motion hour, when the cases were called up to be fixed by the present district attorney, that he was subject to be recused, having participated in their origin.

'The accused, through his counsel, being aware of the reasons for recusation before going to trial, these being of public notice, has waived his right to recuse the judge,' etc.

Every litigant, including the state in criminal cases, is entitled to nothing more than the cold neutrality of an impartial judge, and therefore, if a judge before whom a cause is to be tried is prejudiced or otherwise disqualified, he may be challenged, and, if the challenge is sustained, the cause may be moved to another court or tried before another judge. And it is within the legislative power to mark out the means, manner, and time for the determination of the question whether a judge is disqualified in any given case on account of prejudice. In some of the states it is held that a judge has no discretion when challenged on this ground and that the granting of a change of venue is an imperative duty; but in other states, and probably in any state in the absence of express statute, the court is competent to pass upon the alleged disqualifications, and allow or refuse the change. It is therefore the right and duty of the party who desires to object to or recuse a judge, as he has a right to do, to make his objection by a petition to the court, setting forth the facts upon which he relies. It is also the duty of the party to make his objection before the trial has commenced, if he is aware of the facts at that time; otherwise he will be deemed to have waived the objection, unless a statute declare that proceedings before a disqualified judge shall be void, or unless the disqualification rests upon some rule of public policy.

It is sometimes said that the rule which disqualifies a judge when he is interested in the subject-matter of the suit or is within a certain degree of relationship to one of the parties has its foundation in public policy; but it is probably more accurate to say that it is merely the recognition of every litigant to have his case tried before an impartial judge, while those decisions, which take the view that public policy is involved, deny the right of waiver, as in the case of disqualification by reason of interest. If a matter of personal privilege only is involved, it seems clear that it may be waived, and such is the conclusion reached in a majority of the cases in which the question has been raised. As to what constitutes a waiver, it has been held that a confession of judgment in writing is sufficient, and that appearing before the judge and contesting the case without objecting to the judge on the ground of interest will be deemed a waiver. 15 R. C. L. 539.

In the case of Carr v. Duhme, 167 Ind. 76, 78 N.E. 322, 10 Ann. Cas. 967, where a board of commissioners were parties defendant it is held:

'If the participation of an interested member of the board so affects its jurisdiction as to make its judgment void, then the invalidity cannot be cured even by consent of the parties; but if such improper action is a mere irregularity or error, rendering such proceeding voidable only, then the disqualification and consequent error may be waived by failure to make seasonable objection to the same. * * * It is an ancient maxim of the law that no man should be a judge in his own cause, and this principle still prevails where judicial tribunals are maintained. * * *

'At common law, the disqualifications of a judge because of interest in the subject-matter brought before him did not affect his jurisdiction, and his acting in the cause was regarded as a mere irregularity or error, on account of which a timely recusation would afford ground for the reversal of his judgment upon appeal or writ of error. * * *

'The Supreme Court of that state said upon this subject: 'This statute, mandatory in its terms, voices the universal sentiment of mankind excluding judges from sitting in cases where they are parties or are interested. * * * The authorities are numerous, and nearly uniform, which hold that a judgment or decree rendered by a judge contrary to a statute like ours is void, and may be attacked collaterally.' * * *

'In the absence of prohibitory legislation, the question of the interest or bias of a judge is regarded as a private matter and of concern only to the parties to the action. But when constitutional or statutory provisions forbid a judge from acting officially, his action is regarded as transgressing the public policy of the state. * * *

'In cases where the disqualification of the judge renders the proceeding voidable merely and not void, it may be waived by consent of parties. * * * The board should have been given an opportunity to correct its own errors while the matter was before it. Appellees' silent acquiescence in the action of the board, as shown by the record, was a waiver of the disqualification of Taylor, complained of for the first time on appeal.'

In this state,...