State v. Phillips
| Decision Date | 02 November 1925 |
| Docket Number | 27414 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. PHILLIPS |
Rehearing Denied November 30, 1925
Appeal from Sixth Judicial District Court, Parish of Tensas; F. X Ransdell, Judge.
J. M Phillips was convicted of the possession of intoxicating liquor for beverage purposes, and he appeals.
Affirmed.
Tullis & Wade, of Vidalia, and B. F. Young, of St. Joseph, for appellant.
Percy Saint, Atty. Gen., Percy T. Ogden, Asst. Atty. Gen., Jeff B. Snyder, Dist. Atty., of Tallulah (E. R. Schowalter, Asst. Atty. Gen., of counsel), for the State.
Defendant was charged with having unlawfully in his possession intoxicating liquor for beverage purposes; the liquor consisting of 10 gallons of moonshine, or white lightning corn whisky.
The first step that defendant took in his defense was to file a motion to recuse the trial judge. The motion first sets forth that the charge against defendant, being a misdemeanor, must be heard and determined by the judge without a jury, whose judgment as to the guilt or innocence of defendant will be final, and then sets forth, as the ground proper for recusation, the following:
"That the presiding judge has an interest in this cause, inasmuch as he has heard and listened to statements made to him by various and sundry parties touching the evidence to be introduced on the trial of this case by the prosecution, touching rumors and suspicions circulated and alleged to be entertained by various and sundry persons touching alleged illegal sales and transportation of intoxicating liquor by defendant, and inasmuch as the said prsiding judge, as the result of what he has heard as above set out, has formed and expressed, before a trial of this cause, a fixed opinion as to the guilt of defendant, and has conceived, and now has, an abiding prejudice against this defendant which renders him incapable of giving a fair and impartial trial, and rendering a judgment based solely upon the facts testified by the witnesses at the trial and the law applicable thereto."
The trial judge refused to refer this motion to another judge for trial, but overruled it upon the face of the papers. Defendant reserved a bill of exceptions to the action of the trial judge in refusing to refer the motion to another judge for trial and in overruling the motion on its face. The bill so reserved presents the first bill for consideration.
The grounds for the recusation of a trial judge in this state are statutory. Hence, unless a defendant in such a motion sets forth one of the grounds prescribed by statute therefor, the judge may, and it is his duty, to overrule the motion, but, if the motion sets forth facts showing a legal ground for recusation, the judge must either recuse himself or, according to the ground set forth, refer the motion for trial to the judge of an adjoining district or to an attorney at law appointed by him, as judge ad hoc. If the facts set forth are sufficient, if true, to show that the judge has an interest in the case, interest being a statutory ground for recusation, then, under the statute, the judge must, if he does not recuse himself, refer the motion to a judge of an adjoining district for trial. If the facts set forth are sufficient, if true, to show any other legal ground for recusation than that of interest, then the judge should either recuse himself or refer the motion for trial to a judge ad hoc appointed by him. State v. Morgan, 142 La. 755, 77 So. 588; State v. Blount, 124 La. 202, 50 So. 12; State v. Davis, 154 La. 928, 98 So. 422.
Since, in the case at bar, the judge whom it was sought to recuse overruled the motion for recusation, over defendant's objection, instead of referring it to another judge, the question is presented whether the motion alleges facts showing, if true, a legal ground for recusation. If the motion shows no such ground, then the judge was correct in overruling it; otherwise he was not.
While defendant alleges that the judge whom he seeks to recuse has an interest in the case, and while interest is a sufficient cause for recusation, yet a mere naked allegation of the existence of such interest is insufficient; this being so for the reason that ultimate facts, sufficient to justify the conclusion that such interest exists, must be set forth. State v. Davis, supra. However, defendant has undertaken to set out the facts which he considers justify the conclusion that the judge has an interest in the case. These facts, as we have seen, are that the judge has heard and listened to statements, made by various persons, touching the evidence to be offered by the state on the trial of the case on its merits; that he has listened to rumors and suspicions, which purport to connect defendant with the illicit sale and transportation of...
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State v. Pailet
...if proved, would not justify a finding that he was interested in the cause. State v. Morgan, 142 La. 755, 77 So. 588; State v. Phillips, 159 La. 903, 106 So. 375; State v. Doucet, 199 La. 276, 5 So.2d 894 and the many authorities therein cited and State v. Laborde, 214 La. 644, 38 So.2d The......
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State v. Doucet
...State v. Nunez, 147 La. 394, 85 So. 52; State v. Rini, 153 La. 57, 95 So. 400; State v. Davis, 154 La. 928, 98 So. 422; State v. Phillips, 159 La. 903, 106 So. 375; State Henry, 197 La. 999, 3 So.2d 104; State v. Hutton, 198 La. 174, 3 So.2d 549; and State ex rel. Martin v. Judge of Twenty-......
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Discon v. Saray, Inc., 9237
...interest nor is it a ground for recusation under the statute. State v. Laborde, supra (214 La. 644, 38 So.2d 371). In State v. Phillips, supra (159 La. 903, 106 So. 375), the Court said: 'For a judge to have an interest in a case within the meaning of the law, * * * some fact must exist tha......
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State v. Savoy
... ... the guilt of a defendant, or that he has ruled against him on ... previous occasions, is not legal cause for recusation. State ... v. Hayes, 127 La. 762, 53 So. 983, State v. Morgan, 142 La ... 755, 77 So. 588; State v. Rini, 153 La. 57, 95 So. 400; State ... v. Phillips, 159 La. 903, 106 So. 375 ... [199 La. 327] ... This is upon the theory that a judge who is bound by a solemn ... oath to be fair and impartial and to render righteous ... judgments in all cases brought before him for trial will not ... permit his personal feelings to sway him in ... ...
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Act 42, HB 247 – CRIMINAL/PROCEDURE: Provides relative to the recusal of judges
...also a ground for recusal. Bias or prejudice of the trial judge was not a ground for recusal prior to the 1928 Code. In State v. Phillips, 106 So. 375 (La. 1925), it was held that "interested in the cause" means that the judge must have some personal gain at stake before he can be recused. ......