State v. Waterman

• Decision Date: 03 November 1922
• Citation: 210 P. 208,36 Idaho 259
• Parties: STATE, Respondent, v. GEORGE H. WATERMAN, Appellant
• Court: Idaho Supreme Court

210 P. 208

36 Idaho 259

STATE, Respondent, v. GEORGE H. WATERMAN, Appellant

Supreme Court of Idaho

November 3, 1922

CRIMINAL LAW-CHANGE OF JUDGE-PREJUDICE-SHOWING-INFORMATION-FALSE REPORT-INTENT TO DECEIVE-APPLICATION TO TAKE DEPOSITION-LETTERS AS EVIDENCE.

1. In order to entitle a party to a change of judge on account of prejudice (Const., art. 1, sec. 18), it must be shown that the judge charged with prejudice is prejudiced against the party litigant, and that such prejudice is of such nature and character as would render it improbable that he could or would give the litigant a fair and impartial trial in the particular case pending.

2. In a prosecution of a bank officer for knowingly making a false report of his bank under the last division of C. S., sec 5276, it is not necessary to allege in the information that such report was made with the intent to deceive.

3. Held, that admitting in evidence certain letters addressed to appellant is ground for reversal.

4. Held, that the denial of application to take the deposition of Frank W. Waterman under the circumstances shown by the record in this case is ground for reversal.

APPEAL from the District Court of the Tenth Judicial District, for Lewis County. Hon. Wallace N. Scales, Judge.

Appellant was convicted of having made a false report to the Commissioner of Commerce and Industry. Reversed and remanded for a new trial.

Judgment of the trial court reversed and a new trial granted.

C. H Potts, Miles S. Johnson and C. D. Livingstone, for Appellant.

"Judges are not prosecuting officers, and ought not to be expected to assume the functions of such. A judge should see that a fair impartial hearing is given the people and the prisoner, and it is entirely inconsistent with his position that he should be the monitor of the prosecuting attorney or identify himself in the least degree with the conduct of the trial on either side of a criminal cause." (People v. Page, 1 Ida., at p. 105.)

Criminal laws are enacted primarily to protect society, and by making the report confidential it follows that the penalty for making a false report to the commissioner pursuant to call was to prevent deceit being practiced upon the bank commissioner; hence "the attempt to deceive" is one of the essential ingredients of the crime. (State v. Givens, 28 Idaho 263, 152 P. 1054.)

"It is a general rule of law that in construing a statute the court should take into consideration the reason of the law; that is, the object and purpose of the same, and the object and contemplation of the legislative body in enacting the same." (Wood v. Independent School Dist., 21 Idaho 734, 124 P. 780.)

The defendant was entitled to a fair trial and it was prejudicial error to receive letters in evidence which were entirely irrelevant to the case, particularly so when this evidence was introduced for no other purpose than to excite in the minds of the jurors prejudice against the defendant. (Rapalje, Crim. Proc., sec. 283; 12 Cyc. 434; People v. Colburn, 105 Cal. 648, 38 P. 1105; Packer v. United States, 106 F. 906; State v. Shive, 58 Kan. 783, 51 P. 274; People v. Lee Dick Lung, 129 Cal. 491, 62 P. 71; Casey v. Leggett, 125 Cal. 664, 58 P. 264; Sorenson v. United States, 168 F. 785.)

"There is nothing whatever in the record tending to show that the character of the examination indulged in by the court was necessary. That it had an influence on the minds of the jury prejudicial to the interests of the defendant can readily be conceived from an investigation of the record." (State v. Crotts, 22 Wash. 245, 60 P. 405; State v. Givens, supra; State v. Jackson, 83 Wash. 514, 145 P. 470.)

"When a trial judge discredits counsel for the defense in a criminal case, he, to a certain extent, discredits the defense and thus deprives a defendant of a constitutional right." (State v. Moneymaker, 100 Wash. 463, 171 P. 253; Murray v. State, 19 Ariz. 49, 165 P. 315; State v. Taylor, 7 Idaho 134, 61 P. 288; State ex rel. Warner v. Fullerton, District Judge, 76 Okla. 35, 183 P. 979; Day v. Day, 12 Idaho 556, 10 Ann. Cas. 260, 86 P. 531.)

Roy L. Black, Attorney General, James L. Boone, Assistant, G. C. Pennell and S. O. Tannahill, for Respondent.

Prejudice of a judge must be evidenced by fact. (Bell v. Bell, 18 Idaho 636, 111 P. 1074; secs. 6666, 8889, C. S.) The prejudice of the judge must exist as against the defendant as distinguished from the prejudice of the judge against the cause or defense. (In re Dolbeer's Estate, 153 Cal. 652, 96 P. 266; Day v. Day, 12 Idaho 556, 10 Ann. Cas. 260, 86 P. 531; 16 C. J. 208, note 89.)

The remarks of a trial judge must be given a reasonable interpretation. (State v. Ramirez, 33 Idaho 803, 199 P. 376.)

The taking of depositions outside of the state is a matter of discretion for the trial judge. (State v. Wetter, 11 Idaho 433, 83 P. 341.)

The granting of bail pending appeal is a matter of discretion for the trial judge. (In re Schriber, 19 Idaho 531, 114 P. 29.)

In determining the question of the motion for change of venue and change of judge, no one is in better position to determine whether there is a prejudice on the part of the trial judge than the trial judge himself. (State v. Sexton, 91 Kan. 171, 136 P. 901.)

In making a false report under the provisions of sec. 5276, C. S., it is not necessary that the same be made with attempt and intent to deceive the commissioner of finance or any particular person. (C. S., sec. 5276; State v. Givens, 28 Idaho 263, 152 P. 1054; State v. Paulson, 21 Idaho 686, 123 P. 588; State v. Cutts, 24 Idaho 329, 133 P. 115; State v. O'Neil, 24 Idaho 582, 135 P. 60.)

DUNN, J. Rice, C. J., and McCarthy and Lee, JJ., concur.

OPINION

DUNN, J.

Appellant was tried on an information charging him with making a false bank report to the Commissioner of Commerce and Industry. He was convicted and sentenced to a term in the state penitentiary. The appeal is from the judgment.

Appellant moved for a change of judge on the ground of bias and prejudice of the trial judge as evidenced by his conduct and statements at the time of defendant's entering his plea, April 26, 1922, when the case was set down for trial to begin on the 4th day of May, 1922. This motion was supported by the affidavits of appellant and Miles S. Johnson.

The facts upon which appellant charges bias and prejudice against the trial judge are these: That prior to the filing of the information counsel for appellant was informed by the prosecuting attorney of Lewis county and also by S. O. Tannahill, who was associated with the prosecution, that the case against Leslie L. Roth, assistant cashier of said bank, would be tried before the case against appellant, but that on the morning of the 26th day of April, the prosecuting attorney informed the said Miles S. Johnson "that Honorable Wallace N. Scales, the Judge of the above-entitled Court, had had a conference with himself and Mr. Tannahill the night before and that he had been told by the said Judge that he would not stand for the trial of the case against Roth first and that both he, the said Prosecuting Attorney, and Mr. Tannahill had presented many reasons why they desired to try the Roth case first, but that the Judge of this court had absolutely and positively refused their request to try the Roth case first and told them that he would try the Waterman case first; that when affiant was so informed he immediately sought out the Judge of this court and had a conference with him and the said Judge confirmed the statements made to affiant by the Prosecuting Attorney; he also stated that he would not permit Roth, the Assistant Cashier, and Dempsey, the Cashier, who were officers under Waterman, to be tried before the defendant Waterman, and many other remarks were made by the said Judge during the course of the said conference with affiant; that in a short time thereafter Court convened and after the defendant entered his plea the Court asked the Prosecuting Attorney about the setting of the cases and the said Prosecuting Attorney requested that the Court set the case of the State vs. Roth first and which request was immediately denied and the Court thereupon announced that he would set the case against the defendant Waterman; that during the argument of counsel the Court stated in effect that he would admit that he was prejudiced against trying a clerk or employee first; that affiant endeavored to convince the Court that the defendant Waterman had been misled to his prejudice and that he was not and could not be prepared for trial at this time; that it would be necessary to take depositions of witnesses residing in California, stating the names, the places and the necessity; whereupon the Court replied that he would not permit the defendant to take any depositions whatever outside the State of Idaho."

The facts set forth as the ground for charging bias and prejudice against the trial judge are not denied. Appellant also relies in this court upon certain acts and statements of the trial judge during the progress of the trial and subsequent thereto to support his charge of bias and prejudice.

While the trial judge, in view of the situation presented by the affidavits supporting the motion for a change of judge, might with propriety have granted the application for trial before another judge, we are not prepared to say that the denial of said motion was erroneous, in view of the former holding of this court. There is no statute authorizing a change of judge in a criminal case on the ground of bias or prejudice, and counsel for appellant rely upon the constitutional provision of this state that "right and justice shall be administered without sale, denial, delay, or prejudice." (Const., art. 1, sec. 18.) This provision has been...