State v. Davis

• Decision Date: 22 November 1923
• Docket Number: 26146
• Citation: 154 La. 928,98 So. 422
• Court: Louisiana Supreme Court
• Parties: STATE v. DAVIS In re DAVIS

98 So. 422

154 La. 928

STATE v. DAVIS

In re DAVIS

No. 26146

Supreme Court of Louisiana

November 22, 1923

Relief denied.

Rusca &amp Cunningham, of Natchitoches, for relator.

By the WHOLE COURT.

O'NIELL C. J. DAWKINS, J., concurs. LAND, J., dissents. ST. PAUL, J LECHE, J., and THOMPSON, J., concurs. OVERTON, J., absent.

OPINION

O'NIELL, C. J.

Relator was accused, in separate bills of information, of manufacturing and of selling intoxicating liquor for beverage purposes. Having waived arraignment and pleaded not guilty in each case, he filed a motion to recuse the district judge, averring in the motion that the judge had an interest in the case, that he was a personal enemy of defendant, and was so biased and prejudiced against defendant as to be incapable of giving him a fair and impartial trial. Relator requested the judge either to recuse himself or to refer the motion to a judge of an adjacent district to hear evidence in support of the allegations. But the judge to whom the motion was addressed overruled it, on the ground that the allegations of fact did not set forth a legal cause for recusation. This proceeding is to compel the judge either to recuse himself or to refer the motion for recusation to a judge of an adjoining district to hear evidence in support of the averments in the motion.

By the Act 40 of 1880, p. 38, a judge's "being interested in the cause" was made a ground for his being recused in either a criminal or a civil case. In that respect, the law was not changed either by Act 35 of 1882, p. 48, or by Act 203 of 1918, p. 380, even if this latter act, making some changes in the law of recusation, should be held applicable to criminal as well as civil cases. It has been deemed doubtful whether the statute of 1882 was ever applicable to criminal cases, because, in its title and in its text, it purported to be merely an amendment of article 338 of the Code of Practice, which, of course, has reference only to civil cases. See State v. Nunez, 147 La. 394, 85 So. 52. The act of 1882 did not contain a repealing clause. The act of 1918 does, in terms, repeal all laws in conflict therewith, and specifically the Act 35 of 1882. The act of 1918, however, in its title and in its text, purports to be merely an amendment and reenactment of article 338 of the Code of Practice as amended by Act 35 of 1882. For that reason, the act of 1918 might be declared not applicable to criminal cases, as was suggested with regard to the act of 1882 in State v. Nunez, supra. That is a matter of no importance in the case before us, because, if the act of 1918 is not applicable to criminal cases, the Act 40 of 1880 remains as the law on the subject of recusation in criminal cases; and, under either statute, a district judge's being interested in the case is a cause for recusation.

We have not yet undertaken to establish a rule for determining how a judge may be so "interested" in a criminal case as to disqualify him to sit in judgment in the case. But it is well settled that the mere allegation that a judge is interested in a particular case, without an indication of what his interest is, does not state a cause for his being recused. It is also well settled that the allegations, in a motion for recusation, that the judge is an enemy of the party accused, and is therefore so biased and prejudiced that he cannot give the party a fair and impartial trial, does not set forth a legal cause for recusation. The court ruled otherwise in State v. Banta, 122 La. 235, 47 So. 538; but the ruling has been referred to with disapproval several times, and must now be considered overruled. See State v. Blount, 124 La. 202, 50 So. 12; State v. Hayes, 127 La. 762, 53 So. 983; State v. Morgan, 142 La. 755, 77 So. 588; State v. Nunez, 147 La. 394, 85 So. 52; State ex rel. Martin v. Judge, 152 La. 768, 94 So. 389; State v. Rini, 153 La. 57, 95 So. 400; and State v. Simone, 154 La. 73, 97 So. 302.

In the case of State v. Morgan, 142 La. 755, 77 So. 588, we disposed of the question thus:

"The judge to whom a motion for recusation is addressed is not compelled to refer it to another judge to determine whether the allegations in the motion are true, but may overrule the motion himself, if the allegations do not set forth a legal cause for recusation.

"Prejudice or bias on the part of the judge has not been declared by statute in this state to be a cause for which the defendant in a criminal prosecution may demand that the judge recuse himself."

The foregoing quotations are from the syllabus. We quote now from the opinion itself viz.:

"The cause assigned in the motion [for recusation] was that the judge was so biased and prejudiced against the defendant that it was impossible for the defendant to obtain a fair and impartial trial before him. Although alleged as a fact, that was, of course, only a matter of opinion or belief on the part of the defendant or his learned counsel. In support of the allegation of bias and prejudice on the part of the judge, the motion contains certain recitals or allegations of fact, which, in our opinion, were not a sufficient basis for the conclusion or belief that the judge was so biased or prejudiced that he could not give the defendant a fair or impartial trial. * * *

"It would be an unreasonable proposition to maintain that a motion for recusation that does not set forth a cause for recusation should be referred by the judge to whom it is addressed to another judge to determine whether the averments in the motion are true. Prejudice or bias on the part of the judge has not been declared by statute in this state to be a cause for which he may be recused. * * *

"It is true, in the case of State v. Banta, 122 La. 235, 47 So. 538, it was held that a motion for recusation, containing the allegation that the judge was a personal enemy of the defendant, and was so biased and prejudiced that he was incapable of giving the defendant a fair or impartial trial, set forth something to be considered, and should have been referred to another judge for trial and determination. But the facts of that case were exceptional, and the decision cannot be regarded as maintaining a general principle of law that the allegation that the judge is so biased or prejudiced against the defendant in a criminal prosecution that he cannot give the latter a fair or impartial trial, sets forth a cause for recusation. * * *

"However, in Banta's Case, this court refrained from expressing an opinion on the question whether, as a general proposition of law, bias or prejudice on the part of the trial judge, in a criminal case, is to be regarded as 'his being interested in the cause.' See pages 238 and 239 of 122 La. (47 So. 538). In State v. Bordelon, 141 La. 611, 75 So. 429, the opinion contains a passing remark by which the court appears to have taken it for granted that prejudice on the part of the judge was a cause for which the defendant in a criminal case might demand his recusation. But the dictum is not to be regarded as authority. * * *

"Our conclusion is that there was no error in the judge's refusal to recuse himself or to submit the motion to another judge for a ruling on it."

A rehearing was granted in State v. Morgan, and the ruling was reconsidered and reaffirmed, viz.:

"Although the action of the trial judge on defendant's motion to have him recused received most thorough consideration in our original opinion, the importance of that ruling, considering that it is based upon an apparently conflicting jurisprudence, was one of the causes which induced us to grant the present rehearing. The whole matter was again fully discussed and most elaborately argued by learned counsel. Still believing however, that the conclusions heretofore reached by us, and fully stated in our original opinion, are sound and correct, it is sufficient to say that we adhere to them."

In State v. Nunez, 147 La. 394, 85 So. 52, the author of the opinion in State v. Banta said of his ruling in that case:

"That ruling has since been modified to the extent that it has been held, in effect, that the bare allegation of bias and prejudice is not an allegation of interest on the part of the judge, and does not disclose a cause for his recusation, within the terms of the statute, and that a motion to recuse based upon that ground alone, or upon that ground with specifications which are not within the statute, may be overruled as frivolous and without referring the matter to another judge. State v. Blount, 124 La. 202, 50 So. 12; State v. Hayes, 127 La. 762, 53 So. 983; State v. Morgan, 142 La. 755, 77 So. 588."

The causes for recusation are statutory. A judge's being a personal or political enemy of eitherparty in a civil case, or of the defendant in a criminal case, or of the prosecuting attorney, is not a cause for the judge to be recused. Neither is a judge's being a personal or political friend of the party or parties on either side of a civil case, or on the side of the defense or of the prosecution in a criminal case, a cause for the judge to be recused.

The only question in such case is whether the circumstances are such as to give the judge a material interest in the result of the trial of the case. In State v. Nunez, supra, the judge and the defendant, who was the district attorney, were rival candidates for the judgeship in a political campaign then going on; and in the motion for recusation, it was alleged that the judge was, for that reason, materially interested in the result of the prosecution of the district attorney; that he, the judge, had set the prosecution on foot to subserve that interest, and had acted therein as a detective, as prosecuting witness, and as prosecuting attorney. Those allegations, of course, were held to...