State v. Nunez

• Decision Date: 15 May 1920
• Docket Number: 24030
• Citation: 85 So. 52,147 La. 394
• Court: Louisiana Supreme Court
• Parties: STATE v. NUNEZ. In re NUNEZ

85 So. 52

147 La. 394

STATE v. NUNEZ.

In re NUNEZ

No. 24030

Supreme Court of Louisiana

May 15, 1920

James Wilkinson and Loys Charbonnet, both of New Orleans, for relator.

OPINION

Statement of the Case.

MONROE C. J.

Relator alleges that he is district attorney of the Twenty-Ninth judicial district (composed of the parishes of St. Bernard and Plaquemines); that the grand jury of the parish of Plaquemines returned into the district court sitting for that parish an indictment charging him with extortion in office that on April 9, 1920, he filed in that court a sworn petition requesting the judge to recuse himself and appoint the judge of an adjoining district to try the case, or else appoint such judge to hear and pass on the question of recusation vel non, and the petition thus mentioned is annexed to, and made part of, the petition addressed to this court. Relator further alleges that the causes for recusation set forth in said petition are that the prosecution in question was set on foot by the judge, who acted therein as detective, prosecuting witness, prosecuting attorney, and judge, and that, as a rival candidate of relator for the judgeship of said district, he was actuated by a desire to advance his own interest, candidacy, and prospective success and to injure relator's candidacy, and, by reason of bias and prejudice on his part, that relator could not obtain a fair trial from said judge, the cause being triable before him without a jury; that, although relator's said petition sets forth the strongest possible reasons for his recusation, said judge, on April 10th, took the matter under advisement, and on April 17th handed down a ruling and decree refusing either to recuse himself or to appoint another judge to hear and determine the question of his recusation; and that he thereupon caused a rule to be issued requiring relator to show cause why he should not be punished for contempt for having made the allegations for his recusation which relator believes to be true, pertinent, proper, and privileged, and not such as to subject him to any such proceeding, which is usurpatory, oppressive, and violative of relator's rights. He further alleges in the petition for recusation as follows:

"That your honor not only hunted up evidence in this case so as to bring the present cause against petitioner, but had the clerk of court to summon the witnesses, without notice to accused, before the grand jury, to endeavor to substantiate said charge, and, after summoning the said witnesses before the grand jury, which latter body was illegally drawn and impaneled so as to include a large majority of those politically opposed to petitioner, then and there proceeded, without any affidavits or evidence before you, to make injurious accusations against defendant as to various alleged facts before said grand jury,greatly to petitioner's wrong and prejudice; * * * that, after hearing said witnesses, the grand jury made some finding and return against petitioner in open court; that, instead of ordering said indictment filed, your honor, in a dual capacity, as acting prosecuting officer and judge, took said indictment from the grand jury and read the same aloud, as if demurring on the part of the state thereto, discarded said indictment, and, without any request by the grand jury for you so to do, ordered the deputy clerk of this court to give said body private instructions to go back to their rooms and bring in another indictment against the accused, and, without any request from the grand jury, also instructed Mr. Philip Livaudais, a lawyer of the court, a candidate, with your honor, for the district attorneyship, to go to the grand jury room to prepare another indictment against petitioner; that the said Mr. Livaudais was never appointed district attorney pro tem., nor was he ever sworn as such; that he prepared the document, styled an indictment herein, and illegally remained in the grand jury room and returned into court with said grand jurors and said alleged indictment when said indictment was received and ordered filed.

"(4) That thereupon your petitioner moved to quash this indictment, as per the motion on file in the cause, on the ground that the grand jury that found the same was illegally drawn and constituted, and, after due proof of the allegations of said motion, said motion was overruled, and a bill of exceptions was reserved to said ruling; that immediately thereafter said motion was copied and renewed by Bernard Omes and others on an indictment found by the same grand jury, which similar motion to quash was then and there sustained, and said grand jury was thereby held to be an illegal body; that said contrary ruling clearly showed how great was the prejudice of your honor against the accused.

"(5) * * * That this entire proceeding against accused and all the illegal acts done against defendant herein arose from the fact that your honor and accused are prospective rival candidates for judge at the approaching judicial election, and that your honor has a direct personal interest in this cause in order, by injuring this defendant, to enhance your own prospects of success, and you cannot justly try this cause.

"(6) That, in accordance with this campaign to injure your petitioner, your honor has aided in having said judicial attacks and notice of said indictment given great publicity in the Daily City Item of New Orleans, for the express purpose of injuring petitioner and inflaming the public against him, all contrary to the ethics of proper judicial procedure," etc.

Relator prays that, after hearing, the judge, made respondent, be prohibited from further proceeding either in the matter of the indictment or the rule for contempt, and that he be ordered either to recuse himself as to the prosecution under the indictment or refer the question of his recusation to another judge.

The respondent judge, for cause why judgment should not be rendered as prayed for, alleges as follows:

That it appears from relator's petition that his prosecution was set on foot by the grand jury; that, had he set out the facts more completely, it would appear that the only witnesses summoned in that matter by direction of respondent were Frank Topping and R. Russell, the defendants in the cause for the dismissal of the prosecution in which relator is charged with having illegally received a fee; that, so far as respondent could judge, the only witnesses called before the grand jury, other than the two above named, were the sheriff and the clerk of the court, unless relator was also called, from which fact it is shown that no detective work was required; that respondent "knows nothing of this cause, except by hearsay, to which he has never testified in any way; that, as judge, * * * your appearer considered it his duty to charge the grand jury to investigate the matters brought to his attention by conversations made indiscriminately in his presence, as to the costs attached to nolle prosequi cases, particularly the one of State. v. Topping and Russell, and the alleged share of the same received by the district attorney, and, from the frequency of the motions made by the said district attorney to nolle prosequi cases in open court, on the latter two of which made by him on March 2d, 1920, your appearer, as judge, in open court, remonstrated with defendant, relator herein, concerning the nolle prosequing of cases of serious nature so frequently, whereupon the district attorney submitted to the court that he had unlimited authority to so nolle prosequi cases without supervision by the court. One of these two latter cases was that of State v. Topping and Russell, above mentioned. Your appearer submits to this honorable court that he would have been lax in the performance of the duties of his office * * * if he had not brought such a matter for investigation before the grand jury, which he did, not by way of making accusations against the district attorney, but by submitting the matter openly and in an unbiased fashion to the grand jury, and giving them the law relating to the subject and the cases which had been lately nolle prosequied by the district attorney, as shown by the official records of the court over which your appearer presided. In this connection your appearer attaches thereto and makes a part of his answer his charge to the grand jury of April 5, 1920, * * * and respectfully refers this honorable court to pages 3, 4, and 5 thereof, and also attaches and makes a part hereof the existing order in the case of State v. Omes et al., referred to in paragraph 4 of defendant's petition, filed in Twenty-Ninth judicial district court.

"Your appearer submits that defendant relator alleges that for reasons of bias and prejudice on the part of your appearer as judge, he cannot obtain a fair and impartial trial, but in support thereof he sets up no facts to bear, except that he is a rival candidate, although setting out in paragraph 5 of his original petition for your appearer's recusation that he was a 'prospective' rival candidate for judge at the approaching judicial election." It is respectfully submitted that the fact of being prospective rival "candidates for the same elective office does not constitute 'interest' on the part of a judge of a court, presiding at the trial of a criminal prosecution by the state of Louisiana, any more than it would be considered 'interest' on the part of a judge in presiding over a criminal trial of a pronounced politically opposed qualified voter who might have considerable influence over other voters in a candidate's district."

Respondent avers that he considered the causes alleged by relator for his recusation frivolous, and that they were properly so treated by him, without referring the matter to...