State v. Brown
| Decision Date | 03 September 1912 |
| Citation | 126 P. 245,8 Okla.Crim. 40,1912 OK CR 371 |
| Parties | STATE v. BROWN. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
(a) A defendant in a criminal case has no right to insist that he be tried before a judge prejudiced in his favor, or before any particular judge; and no rights of a defendant are invalidated by the substitution of a judge impartial as between himself and the state.
(b) The Legislature has the power to mark out the means, manner, and time for the determination of the question as to whether a judge is disqualified in any given case on account of prejudice.
(c) The fact that the prejudice of a trial judge is not mentioned in the statutes as a ground for disqualification is immaterial. Such disqualification rests upon constitutional grounds, and cannot be excluded by the provisions of the statute. The statute merely provides the means by which the disqualification of a judge upon any ground may be secured.
(d) The statute gives all parties to a suit equal right to object to such action being tried before a prejudiced judge, and in criminal cases this right extends to the state as well as to the defendant.
(a) Section 6947, Comp. Laws 1909, in express terms gives the state the right to reserve any question arising in a criminal cause; and when said cause is determined the state can bring such question up on appeal to this court for review.
(b) The Criminal Court of Appeals has the power, and it is its duty to consider a petition for a writ of mandamus upon motion of the state to disqualify a judge from trying a criminal case.
(a) For facts that would not authorize this court to issue a writ of mandamus upon motion of the state disqualifying a judge from trying a criminal case, see opinion.
(b) A judge should never be a partisan. He should treat both sides with equal fairness and impartiality. Whenever a judge becomes a partisan, his usefulness on the bench is at an end.
(c) The law provides county jails as the places of confinement of prisoners before trial, and sheriffs have no right to keep them anywhere else, or to allow them to be at liberty, except on order of a court of competent jurisdiction. Sheriffs have no right to have pets or favorites, or extend any liberties or privileges to one prisoner which the law does not extend to all prisoners. It is the duty of trial judges and county attorneys in this state to see that the law in this respect is obeyed.
Mandamus by the State against T. L. Brown. Writ denied.
A petition for a writ of mandamus was filed in this court by the county attorney of Nowata county, which, in substance and effect, alleges that an action is now pending in the district court of Nowata county, wherein the state of Oklahoma is plaintiff and H. O. Jefferies is defendant, in which said Jefferies is charged with the crime of murder, and that the respondent, Hon. T. L. Brown, is the duly elected, qualified and acting judge of said district court. The petition further alleges in general terms that the state cannot have a fair and impartial trial of said case before said judge, because of the bias and prejudice of said judge against the plaintiff and in favor of the defendant therein, and also because of the hostility of said judge toward the county attorney of said county; and said petition prays that this court issue a writ of mandamus requiring said judge to certify his disqualification to preside at the trial of said cause. The petition further alleges that on the 28th day of June, 1912 the county attorney of said county filed in said cause a written application setting forth that said judge was disqualified to sit in said cause and requesting him to so certify, and that said judge had declined and refused to so certify his disqualification to preside at the trial of said cause.
Where accused had been arrested and committed to jail for murder to await trial, it was the duty of the sheriff to keep accused confined in jail, and it was improper to permit him to go at large in the custody of a deputy sheriff.
The special grounds relied upon to sustain the charge of prejudice are stated as follows:
"(1) That the said T. L. Brown, judge of the district court in and for Nowata county has shown himself biased against the state and in favor of the defendant in this, to wit: (a) That on the 23d day of April, 1912, on the day that the said H. O. Jefferies was arrested, the said T. L. Brown, judge of the district court aforesaid, did advise and inform the sheriff of Nowata county to the effect that said H. O. Jefferies, although he was charged with the murder of one Irene Goheen, could be allowed to run at large on the streets of Nowata and other places, if the said H. O. Jefferies would pay for some one to guard him while he was at large. (b) That said Jefferies was, on the advice of the said T. L. Brown, judge of the district court aforesaid, allowed to run at large, and did spend the day on the streets and in the stores and offices of the town, and the nights at his home on South Hickory street in the city of Nowata.
(2) That the said T. L. Brown, judge of the district court, shows his bias and prejudice in behalf of said defendant, in words and acts as follows: (a) That on the ______ day of June, 1912, and immediately preceding the hearing on the petition for writ of habeas corpus, in which the said H. O. Jefferies was seeking to obtain bail, that the said T. L. Brown, judge of the district court aforesaid, did at various and sundry times have private and secret consultations relative to and pertaining to the merits of the case of State of Oklahoma v. H. O. Jefferies; one of said consultations being had and held in the private office of Judge Bert Van Leuven, attorney for defendant, and Detective H. F. Tillotson, private detective and adviser of the defendant, being present. That in this conversation aforesaid, occurring in the office of the said Judge Bert Van Leuven on Cherokee street, and next door east of the Denton building, the said Judge T. L. Brown, judge of the district court aforesaid, did, with the attorney and detective aforesaid, discuss the merits of the case of the State of Oklahoma v. H. O. Jefferies and the advisability of releasing the said H. O. Jefferies on bond.
(3) That the said T. L. Brown did further show his bias and prejudice in favor of the defendant, and did, on or about the 13th day of June, 1912, proceed to the county jail, where the said H. O. Jefferies, defendant in the above-entitled cause, was incarcerated, and did there in said jail hold an extended and secret consultation with the defendant, in which the guilt or innocence of the said defendant was discussed, the probability of the Criminal Court of Appeals refusing to give the defendant bond, the intention of the said T. L. Brown, judge of the district court, in case that the said defendant did not get bond at the hands of the said Criminal Court of Appeals of the state of Oklahoma, that the said T. L. Brown would see that the said H. O. Jefferies, defendant aforesaid, should have a square deal, and that he, the said T. L. Brown, judge of the district court aforesaid, would see that the said H. O. Jefferies would be released on bond.
(4) That the said T. L. Brown is also biased and prejudiced in behalf of the defendant, because of his extreme dislike and hatred of and towards the elected and acting county attorney of Nowata county.
(5) That the district judge, T. L. Brown, has shown his prejudice and extreme hatred towards W. V. Thraves, county attorney of Nowata county, in this, to wit: That on the 15th day of June, 1912, the said T. L. Brown, judge of the district court aforesaid, did write a letter to the Attorney General of the state of Oklahoma, at Oklahoma City, Oklahoma, stating to the effect that the said W. V. Thraves, county attorney as aforesaid, was not properly conducting and prosecuting the case of State of Oklahoma v. H. O. Jefferies, and that he desired the Attorney General of the state of Oklahoma aforesaid to appoint an assistant to come to the county of Nowata, and, in conjunction with the county attorney's office, that he, the said appointee of the said Attorney General aforesaid, should undertake to find and prosecute the real murderer of Irene Goheen, deceased. That the said application is uncalled for, unnecessary, and absolutely useless, being prompted by prejudice, bias, and malice as aforesaid on the part of the district judge aforesaid.
(6) That the said district judge, T. L. Brown, is disqualified, for the reason that he has at various times expressed his opinion as to the guilt or innocence of the defendant. That it is true that the said T. L. Brown, district judge as aforesaid, has expressed the above opinion that the said H. O. Jefferies was guilty of the murder, and at other times that the said H. O. Jefferies should be released and would be released on bond pending his trial in the district court. That subsequent to the denial by said judge of your petitioner's application as aforesaid, your petitioner learned of the following statements made by said judge, disclosing his bias and prejudice against the plaintiff and in favor of the defendant in said cause, to wit: That said judge, discussing said cause, stated that he would try said case. 'So help me God,' the state couldn't take him off the bench, and that the defense didn't want to, and that he would not hang Jefferies, no matter what the verdict of the jury was, unless he knew positively of his own knowledge that said Jefferies was guilty."
To this petition respondent answers as follows:
"Your respondent denies that an impartial trial cannot be had in said action, and denies that he has any bias in favor of the defendant or prejudice against the state, and denies any...
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