State v. Palmer

• Decision Date: 13 January 1894
• Citation: 57 N.W. 490,4 S.D. 543
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. WALTER E. PALMER, Plaintiff in error.
• Court: South Dakota Supreme Court

4 S.D. 543, 57 N.W. 490 (1894)

STATE OF SOUTH DAKOTA,

Defendant in error,

v.WALTER E. PALMER,

Plaintiff in error.

South Dakota Supreme Court

Error to circuit court, Clark County, S.D.

Hon. J. O. Andrews, Judge

Reversed

C. G. Sherwood, C. X. Seward

Attorneys for plaintiff in error.

Coe I. Crawford, Attorney General

S. H. Elrod States Attorney, Clark County, S.D.

Attorneys for defendant in error.

Opinion filed Jan. 13, 1894

CORSON, P. J.

The plaintiff in error was indicted, tried and convicted in the circuit court of Clark county, of the crime of grand larceny. Prior to the commencement of the trial, counsel for plaintiff in error moved the court to call in another circuit judge to preside at the trial of said action; basing said motion on the affidavit of the plaintiff in error, which, omitting the formal parts, is as follows:

“Walter E. Palmer, being first duly sworn, on his oath says: I am the defendant named in the above entitled action. I have reason to believe and do believe, and therefore charge the truth to be, that I cannot have a fair and impartial trial before the presiding judge of this court, to-wit, the Hon. J. O. Andrews, by reason of his, the said judge’s, bias and prejudice against this defendant. Wherefore, defendant asks that any other judge of a circuit court of this state be called to preside at the trial of this defendant on the indictment found and returned by the grand jury, accusing this defendant of the crime of grand larceny.

“Walter E. Palmer.”

The court denied the motion, to which ruling the plaintiff in error, by his counsel, duly excepted. The case was then tried, the judge of the court presiding at the trial. After verdict, and before judgment, a motion was made in arrest of judgment, which was denied, and exception taken. A motion was also made for a new trial, one of the grounds of which was that the court erred in denying the motion of the plaintiff in error for a change of judges, which motion was also denied, and to which ruling of the court the plaintiff in error, by his counsel, duly excepted.

The only question which we shall consider on this appeal is, did the court err in denying the motion of the plaintiff in error for a change of judges for the trial of said action upon the affidavit filed? The motion was made upon the last clause of Section 7312, as amended by Chapter 50, Laws 1891, That section reads as follows:

“A criminal action, prosecuted by indictment, may, at any time before trial is begun, on the application of the defendant, be removed from the court in which it is pending, if the offense charged in the indictment be either a felony or a misdemeanor, whenever it shall appear to the satisfaction of the court by affidavits, or if the court should so order by other testimony, that a fair and impartial trial cannot be had in such county or subdivision, in which case the court may order the person accused to be tried in some near or adjoining county, in any circuit where a fair and impartial trial can be had; but the party accused shall be entitled to a removal of the action but once, and no more, and if the accused shall make affidavit that he cannot have an impartial trial by reason of the bias or prejudice of the presiding judge of the circuit court where the indictment is pending, the judge of such court may call any other judge of a circuit court to preside at said trial, and do any other act with reference thereto, as though he was presiding judge of said circuit court.”

This is

substantially the section as it has existed in the criminal practice act since 1877; the only change made by the amendment of 1891 being to extend its provisions to parties accused of misdemeanors, as well as those accused of felonies. The object sought to be accomplished by the provisions of this section seems to be to secure to a party charged with crime a fair and impartial trial by a jury in a county uninfluenced by local bias or prejudice, and by a judge uninfluenced by bias or prejudice against the party charged. As will be observed, the section provides for two classes of cases,—one in which a party claims that he cannot have a fair and impartial trial in the county, by reason of bias or prejudice of its citizens; and the other, in which a party claims that he cannot have an impartial trial, by reason of the bias or prejudice of the presiding judge....