State v. Hoist

• Citation: 126 N.W. 1090,111 Minn. 325
• Decision Date: 01 July 1910
• Docket Number: 16,616 - (22)
• Parties: STATE v. FRANK HOIST
• Court: Supreme Court of Minnesota (US)

126 N.W. 1090

111 Minn. 325

STATE v. FRANK HOIST

Nos. 16,616 - (22)

Supreme Court of Minnesota

July 1, 1910

Defendant was convicted in the district court for Hennepin county of the crime of murder in the second degree and sentenced to confinement in the state prison for life. From the judgment defendant appealed. Reversed.

SYLLABUS

Affidavit of prejudice -- judge.

Upon the filing of an affidavit of prejudice, as provided by section 4101, R.L. 1905, the presiding judge is thereby incapacitated for the trial of the accused.

Affidavit of prejudice -- disqualification of judge.

In the case at bar appellant was arraigned before the presiding judge on May 29, 1909. A plea of not guilty was entered, his trial was fixed for June 14, and his affidavit of prejudice was filed on June 5. Held, the affidavit was filed within two days before the expiration of the time allowed him by law to prepare for trial.

J. Le Roy Smith and A. T. Ankeny, for appellant.

George T. Simpson, Attorney General, Al. J. Smith, County Attorney and John M. Rees, Assistant County Attorney, for the State.

OPINION

LEWIS, J.

On May 27, 1909, appellant was indicted by the grand jury of Hennepin county, Minnesota, charged with the crime of murder in the first degree, and on May 28 the following day, was arraigned before Hon. Andrew Holt, one of the district judges of that district. A plea of not guilty was entered, and it was ordered that he should have until the fourteenth of June in which to prepare for trial. On June 5 he executed and filed with the court an affidavit that his trial had been set for the fourteenth of June, that all the criminal cases on the calendar for trial during the then pending April general term of court had been assigned to Judge Holt, and that because of prejudice and bias on the part of that judge he had good reason to believe and did believe that he could not have a fair trial. On June 14 appellant appeared in court, and his attorney who had appeared for him at the time of his arraignment withdrew as his counsel. He was then asked by the court if he had no attorney, to which he replied that he had not, whereupon the court appointed attorneys to take charge of his defense, and the cause proceeded to trial, resulting in a verdict of guilty of the crime of murder in the second degree. A motion was made by defendant's counsel to set aside the verdict on the ground that Judge Holt was disqualified. The motion was denied, and judgment was entered, from which appeal was taken.

Section 4101, R.L. 1905, reads: "Any party to a cause pending in a district court having three or more judges, within one day after it is ascertained which judge is to preside at the trial thereof, may make and file with such judge, and serve on the opposite party, an affidavit stating that, on account of prejudice or bias on the part of such judge, he has good reason to believe, and does believe that he cannot have a fair trial of such cause, and thereupon such judge shall forthwith secure some other judge of the same or another district to preside at the trial, and shall continue the cause on the calendar until such judge can be present. In criminal actions such affidavit may be made and filed with such judge by the defendant not less than two days before the expiration of the time allowed him by law to prepare for trial, and in either of such cases such presiding judge shall be incapacitated to try such cause: Provided that in criminal cases such judge for the...