State v. Chapman

Decision Date18 December 1890
Citation1 S.D. 414,47 N.W. 411
PartiesSTATE OF SOUTH DAKOTA, Defendant in error, v. GEORGE H. CHAPMAN and William Koller, Plaintiffs in error.
CourtSouth Dakota Supreme Court

GEORGE H. CHAPMAN and William Koller, Plaintiffs in error. South Dakota Supreme Court Error to County Court, Lincoln County, SD Hon. A. G. Steiner, Judge Affirmed Winsor & Kittredge, Sioux Falls, SD Attorneys for Plaintiffs in error. Robert Dollard, Attorney General, Pierre, SD Attorney for defendant in error. Argued Oct. 7, 1890. Opinion filed Dec. 18, 1890

BENNETT, J.

The plaintiffs in error were informed against in the county court of Lincoln county, for keeping a common nuisance in the city of Canton, County of Lincoln, by selling intoxicating liquors as a beverage, and wilfully and unlawfully permitting persons to resort to the room and building where said liquors were sold. Before the commencement of the trial, the defendants applied for a change of judges, on the ground that the judge of said county court was prejudiced against the defendants, and filed. the affidavits of defendants, together with that of several other citizens of Lincoln county, stating that they believed that said judge was prejudiced. After a statement of the judge was filed, the court denied the application, stating that the affidavits set out no facts upon which to predicate the fact, or upon which to form a belief of the prejudice alleged to exist in the judge, but that they simply expressed a conclusion. Afterwards, and against the protest of the defendants, a jury was impaneled in the case, and a trial was had, and a verdict of guilty was rendered against the defendants, and they were sentenced each to pay a fine of $150 and the costs of the prosecution, and to be imprisoned in the county jail for sixty days. A motion for a new trial was duly made and overruled, and afterwards the cause was brought to this court by writ of error. The assignments of error are:

(1) In denying defendant’s motion for a change of judges in the trial of said action.

(2) In rejecting and admitting evidence on said trial, as appears by the bill of exceptions.

(3) In refusing defendants’ first and fourth requested instructions to the jury.

(4) In instructing the jury as requested by the prosecution.

The application for a change of the trial judge was based upon the following affidavits:

William Koller and George H. Chapman, being first duly sworn, severally say that they are defendants in the above entitled action, and that A. G. Steiner, the county judge of said county, is prejudiced and biased in said action against them, and that they cannot have a fair and impartial trial before said court while said judge is presiding.”

[Signed] William Koller, George H. Chapman

"H. C. Hichborn, E. C. Stillwell, M. H. Hermanson, E. J. Kean, F. P. Smith, and N. M. Jacobson, being first duly sworn, say that they have read the foregoing affidavit of William Koller and George H. Chapman, and know the contents of the same, and that deponents are residents of the county of Lincoln and State of South Dakota, and are acquainted with the defendants and said county judge referred to in said affidavits, and that deponents verily believe said affidavits are true.”

Signed by each affiant. Upon the presentation and hearing of the application and affidavits, the application was denied, as follows:

“This application coming regularly up for hearing before the court: Ordered, that the same be, and it is hereby denied; to which order the defendants severally excepted, which exception is allowed; the affidavit setting out no sufficient facts, but simply conclusions.

“By the court

A. G. Steiner, Judge.”

Was this denial error? Section 20, c. 78, Laws 1890, under which the application was made. provides: Whenever it shall appear “to the satisfaction of the court,” by affidavit or otherwise, that a fair and impartial trial cannot be had in such court by reason of the bias or prejudice of the judge, or otherwise, the court shall call the judge of another county to try the case. Bias and prejudice of the presiding judge to such an extent that a fair add impartial trial cannot be had is sufficient cause to entitle the defendant to have a change in the judge; but, before this can be done, these facts must appear to the satisfaction of the court by affidavit, etc. The affidavits in support of such a motion must state facts and circumstances from which the conclusion is deduced that a fair and impartial trial cannot be had. The conclusion is to be drawn by the court, and not by the defendant and his witnesses, and the court must be satisfied from the facts and circumstances positively sworn to in the affidavits, and not from the general conclusions to which a defendant may swear. This is the rule laid down in the case of Territory v. Egan, 3 Dak. 125, and also in the case of People v. McCauley, 1 Cal. 383; rendered under a statute differing but slightly from our own, but which is clearly capable of receiving the same construction, as the meaning and requirements are unquestionably the same. The one says, “Whenever it shall appear to the satisfaction of the court;” the other says, “If the court be satisfied that the representations of the defendant be true,” the removal may be made. The contention of the appellants is, however, that when an affidavit is filed setting forth absolutely that the judge is prejudiced, it is an absolute right of the defendant to have another judge called in, and it is the bounden duty of the court to call another judge. This cannot be. The statute does not allow him to change the judge unless the court is satisfied that his bias and prejudice is so great that an impartial trial cannot be had, and he is not bound to grant a change on the mere affidavit of the defendant, even though supported by others, that he believes the judge is prejudiced, or that he is so in fact. Statutes bearing upon questions of this character differ vary essentially in their wording and construction. There are those that allow a change of judge or venue of the case on an affidavit of defendant that he believes the judge is so prejudiced against him that he cannot have a fair and impartial trial; others that he is so prejudiced. These statutes usually make it imperative that the change should be made, and no discretion is left in the court. The whole matter is left with the conscience of the affiant, and when an affidavit fulfilling the requirements of the statute is filed the change must be made, and the truth of the matter is not open to question. But the statute under consideration is radically different. This fact must be made “to appear to the satisfaction of the court,” by affidavit or otherwise. This fact may be established like any other fact, and it would be competent for the county court to receive evidence upon the point, by affidavit, or by deposition, or by means of oral examination of witnesses in its presence. The words, “to the satisfaction of the court,” do not mean simply the sufficiency of the affidavit or other proof, but go to the quieting of the mind of the judge,—go to the freedom to act according to one’s judgment on the question of bias and prejudice. The statute does not allow him to vacate his seat and call in another to fill it unless he is satisfied that the allegations of the affidavit, or otherwise, are true. In this regard he may take into consideration his own personal knowledge of the fact. If the personal knowledge of the judge is ignored it will often place him in a position of being compelled to find that to be a fact which he knows not to be a fact,—a fact which carries with it something of an imputation upon himself.

Again, if it were to be determined simply by the affidavit of the defendant, and that, too, only making the allegation of bias and prejudice in general terms, and no statement of facts or circumstances from which these might be deduced, there would be almost numberless changes of judges. Every defendant closely pressed would seek delay in this manner. It is only when the necessities of justice require it that a change as contemplated in the statute should be made Otherwise a great wrong upon the public would be perpetrated. These changes work delay; they cause expense; they endanger prosecutions. A defendant is easily persuaded of the prejudice of the judge. Adverse rulings convince him of the fact. An idle or thoughtless remark made out of court; some previous business transaction where perhaps a wrong may seemingly have been perpetrated. Belonging to opposite political parties, or different churches; different views upon moral, social, or economic questions,—all aid a defendant in arriving at the conclusion that the judge has a bias or prejudice against him. It seems to us, therefore, that this is the true rule: That such facts and circumstances must be proven by affidavit, or other extrinsic testimony, as clearly shows the existence of a bias or prejudice on the part of the judge against the defendant, and, unless this bias and prejudice thus clearly appears, the appellate court will sustain the overruling of the application. It must be such a showing, and strong enough to overthrow the presumption in favor of the integrity of the trial judge. In these conclusions we are supported by the following list of cases: People v. Mahoney, 18 Cal. 181. Judge Baldwin, in delivering the opinion of the court, said:

“The mere affidavit of the defendant does not render it obligatory on the court to change the venue. The statute declares: ‘If the court be satisfied that the representations of the defendant be true, an order shall be made for removal,’ etc. It is evident, therefore, that the court is not bound to take for granted the unsupported statement of the defendant, and assign it conclusive effect. A reasonable discretion is to be given to it on this subject, and while we should not be disposed to hold an arbitrary refusal to change the venue as warranted, yet we think the mere unsupported assertion of the defendant ...

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