State v. Thompson

• Decision Date: 01 December 1920
• Docket Number: No. 4748.,4748.
• Citation: 43 S.D. 425,180 N.W. 73
• Parties: STATE v. THOMPSON.
• Court: South Dakota Supreme Court

43 S.D. 425

180 N.W. 73

STATE

v.THOMPSON.

No. 4748.

Supreme Court of South Dakota.

Dec. 1, 1920.

Appeal from Circuit Court, Meade County; James McNenny, Judge.

George H. Thompson was convicted of burglary, and appealed from the judgment and order denying a new trial. Reversed and remanded, with directions.Harry P. Atwater and H. M. Lewis, both of Sturgis, and Henry Frawley, of Deadwood, for appellant.

Byron S. Payne, Atty. Gen., and E. D. Roberts, of Pierre, for the State.

GATES, J.

Defendant was charged with the burglary with explosives of the Farmer's State Bank of Faith. After his plea of not guilty and before trial, he filed an affidavit of bias and prejudice of the presiding judge in the language of the statute and demanded that another judge be called to preside at the trial. On the same day the defendant was ordered into court and the following proceedings were had:

“By the Court: Mr. Thompson, you signed an affidavit here yesterday in which you charge that you could not have a fair trial.

Mr. Atwater: If the date is yesterday, it is a mistake, because it was signed this morning.

By the Court: You signed, then, this morning an affidavit charging that you could not have a fair trial by reason of the bias and prejudice of this court? A. Yes, sir.

By the Court: Did you ever see me before? A. No, sir.

By the Court: You stated that you never saw me before? A. No, sir; only the time I was up before you the other day to plead.

By the Court: And does that form your basis on which you make the affidavit that by reason of the bias and prejudice of me you cannot have a fair trial.? A. For that reason, and I understood you were attorney for the bank here for a number of years. I thought that under that condition I couldn't have a fair trial.

By the Court: Is that the ground upon which you filed the affidavit, too, Mr. Gabriel? A. Yes, sir.

By the Court: And because you think I was attorney for a bank eight or nine years ago, you think that fact would warrant you in filing the affidavit that I was biased and prejudiced against you, do you? A. Yes, sir.”

The trial court denied the motion for a change of judges, and in so doing said, among other things:

“Now, the statute provides that when an affidavit is filed alleging the bias and prejudice of the presiding judge a judge must immediately call in another judge to try the case, and I am mindful of the fact that the legislature of the state of South Dakota had a right to say by whom, when, and where a person charged with crime shall be tried. I also believe that a court has inherent power and that it is the duty of the court to protect the court and the people from fraud and imposition, and I believe that the affidavit in this case and the statements made would, if the court followed them, work a fraud and imposition upon this court and the people, and, much as I regret having to pass upon a case of this kind, I feel that there is no other tribunal competent to pass upon it at this time, and that it is my duty to pass upon it. And as I view the affidavit and the statements made in connection with it by the defendant parties who filed the affidavits, are so far-fetched, frail, and unsubstantial that to act upon them would be committing fraud and imposition upon the courts of this state and the people of South Dakota. Therefore, gentlemen, I am compelled to deny the motion.”

The statute in question is a portion of section 4813, Rev. Code 1919, viz.:

“And if he 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...