Young v. State

• Decision Date: 25 February 1942
• Docket Number: A-9891.
• Citation: 123 P.2d 294,74 Okla.Crim. 64
• Parties: YOUNG v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

123 P.2d 294

74 Okla.Crim. 64

YOUNG v. STATE.

No. A-9891.

Court of Criminal Appeals of Oklahoma

February 25, 1942

Syllabus by the Court.

1. Oklahoma Statutes 1931, Section 2915; Oklahoma Statutes Annotated, Title 22, Section 575, provides the procedure for the disqualification of the trial judge.

2. Under the above statute a written application should be filed setting forth the grounds or facts upon which the claim is made that the judge is disqualified. A reasonable notice should be given to the other side of the hearing, and should the trial judge refuse to certify his disqualification within three days before said cause is set for trial, application may be made to this court in criminal cases for mandamus requiring him so to do.

3. Due diligence should be used in making the application, and should not be delayed until the day the case is set for trial.

4. Where one had knowledge of the grounds of disqualification for more than three days prior to the day set for trial, and did not avail himself of the procedure prescribed by the above statute, he cannot urge the disqualification on appeal.

5. The Constitution, article 2, § 6, O.S. 1941, guarantees to every person charged with an offense a trial without "prejudice." As applied to a judge, this is properly construed to mean personal prejudice or bias on the part of the judge against the defendant. It does not mean that the judge may not have an opinion of the guilt or innocence of a defendant or may not be prejudiced against the crime with which he is charged, but shall not entertain a personal prejudice against him. In order to disqualify, it must be shown as a matter of fact, and not as a conclusion that the judge does entertain such personal prejudice.

6. Where an affidavit for a search warrant is sworn to positively, the truthfulness of said affidavit cannot be assailed upon the trial.

7. Where it is stated in the affidavit to procure a search warrant that the party whose premises are to be searched was operating under and was the owner of a federal internal revenue retail liquor dealer's license, was a fact to be taken into consideration by the magistrate, together with the other facts stated therein, as to whether there was probable cause for the issuance of the search warrant.

8. Affidavit for search warrant examined and found to be sufficient to cause magistrate to believe there was probable cause for the issuance of same.

9. Where one is charged with the unlawful possession of intoxicating liquor, it is proper for the court to charge the jury under Chapter 153, Section 3, Session Laws 1933; Oklahoma Statutes Annotated, Title 37, Section 82, where the facts justify the same.

10. Oklahoma Statutes 1931, Section 2625; Oklahoma Statutes Annotated, Title 37, Section 32, known as the "gallon statute", is not in effect.

Appeal from County Court, Pittsburg County; Wm. Jones, Judge.

Jack Young was convicted of unlawful possession of intoxicating liquor, and he appeals.

Affirmed.

Hulsey & Hulsey, of McAlester, for defendant.

Mac Q Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen. and Paul Gotcher, Co. Atty., of McAlester, for the State.

BAREFOOT Presiding Judge.

Defendant Jack Young, was charged in the County Court of Pittsburg county with the crime of unlawful possession of intoxicating liquor, to wit: "One Pint and six half pints of mixed whiskey", was tried, convicted, and sentenced to pay a fine of $50 and serve thirty days in the county jail.

This charge was the outgrowth of a search of defendant's residence at "No. 2 West Kiowa Street, McAlester, Pittsburg County, Oklahoma", on the 29th day of November, 1939, by the sheriff of Pittsburg county and two deputies and the finding of the liquor above described in an attic in said residence.

Defendant for reversal of this case contends:

First. That the trial court erred in refusing to sustain his motion to disqualify himself.

Second. That the court erred in refusing to sustain his motion to suppress the evidence obtained under the search warrant for the reason that the same was illegal and void.

Third. That the evidence is insufficient to sustain the verdict, and that the court should have sustained the demurrer to the evidence and instructed the jury to return a verdict of not guilty.

It may first be stated that the information in this case was filed on the 5th day of December, 1939. It charged the defendant and his wife, Ethel Young, jointly. On the 27th day of March, 1940, defendants filed a motion to disqualify the county judge of Pittsburg county, which was as follows:

"Comes now the defendants, Jack Young and Ethel Young, and make application to the court for the Honorable Wm. Jones, County Judge, to disqualify in this cause of State of Oklahoma vs. Jack Young and Ethel Young, No. 4946 in the County Court of Pittsburg County, Oklahoma, for the reason that the said County Judge has prejudged the guilt or innocence of the defendant, Jack Young, and has publicly declared that said Jack Young is a bootlegger and criminal, and has threatened to wear the county jail out with the said Jack Young if the said Jack Young did not cease the commission of the alleged crime of the violation of the prohibition laws of the State of Oklahoma, and these defendants state that they do not believe they can have a fair and impartial trial before said County Judge because of the prejudice of said County Judge against the said Jack Young, one of the defendants in this action, he being the husband of the other defendant, Ethel Young.

Wherefore the said defendants move the court to disqualify in this cause."

To this motion there was attached the affidavit of Joe Dyer, Jr., which was as follows:

"Joe Dyer, Jr., being duly sworn, makes affidavit and says that on about the 18th day of November, 1939, when he appeared before Wm. Jones, County Judge of Pittsburg County, Oklahoma, to qualify on the appearance bond of Jack Young and Ethel Young, in the County Court in and for Pittsburg County, Oklahoma, the said County Judge, Wm. Jones, warned him to not sign said bond or cautioned him that he should not sign said bond, stating to this affiant that the said Jack Young was one of the biggest criminals and bootleggers in Pittsburg County, or words to that effect."

On the same day, March 27, 1940, this case was set for trial, and a jury was in attendance upon the court. The motion was presented to the court, and in support of the motion defendant was offered as a witness and examined. It is unnecessary to give all of his testimony. Reference will hereafter be made as occasion demands. No other evidence was offered by defendant. The court, in overruling the motion to disqualify himself, made a lengthy statement which is shown by the record. In this statement the court expressly stated that notwithstanding any personal opinion, he could and would give the defendant a fair and impartial trial. The only question passed upon by the court in the trial of the case was the motion to suppress the evidence. Reference thereto will be made later in this opinion. There is nothing in the record to show any action on the part of the court to indicate any personal prejudice against the defendant. He was given the minimum sentence provided by the statute.

On the same day, March 27, 1940, defendant filed his motion to suppress, with a copy of the affidavit and search warrant attached thereto, and on the same day the same was overruled by the court. No evidence was presented by defendant on the motion to suppress. The case on the same day, March 27, 1940, came on regularly for trial, having been set for that day, and was tried before a jury with the result that defendant was convicted as above stated. Defendant Jack Young was given a severance and he alone was tried and has appealed to this court.

The statute which prescribes the procedure for the disqualification of trial judges in this state is Oklahoma Statutes 1931, Section 2915; Oklahoma Statutes Annotated, Title 22, Section 575, and is as follows:

"Any party to any cause pending in a court of record may in term time or in vacation file a written application with the clerk of the court, setting forth the grounds or facts upon which the claim is made that the judge is disqualified, and request said judge so to certify, after reasonable notice to the other side, same to be presented to such judge, and upon his failure so to do within three days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do."

This statute has often been construed by this court in criminal cases and by the Supreme Court in civil cases. The following cases are cited. Pruitt v. State, 62 Okl.Cr. 38, 70 P.2d 129; Fisk v. Venable, 61 Okl.Cr. 360, 68 P.2d 425; Castleberry v. Jones, 68 Okl.Cr. 414, 99 P.2d 174; Lee v. State, 66 Okl.Cr. 351, 92 P.2d 591; Ingles v. McMillan, 5 Okl.Cr. 130, 113 P. 998, 45 L.R.A., N.S., 511; Ex parte Hudson, 3 Okl.Cr. 393, 106 P. 540, 107 P. 735; Lewis v. Russell, 4 Okl.Cr. 129, 111 P. 818; Yeargain v. Venable, 65 Okl.Cr. 225, 84 P.2d 812; Johnson v. Wells, 5 Okl.Cr. 599, 115 P. 375; Saddler v. Crump, 30 Okl.Cr. 157, 235 P. 263. In civil cases: Holloway v. Hall, 79 Okl. 163, 192 P. 219; Prowant v. Sealy, 77 Okl. 244, 187 P. 235; Fox v. Ziehme, 30 Okl. 673, 120 P. 285; Myers v. Bailey, 26 Okl. 133, 109 P. 820. These cases give fully the history of this statute, the rule that was in force in this state prior to its passage, and the rule to be followed since its adoption. It is unnecessary to quote from them fully, as they may be read by those who desire.

In the Pruitt case, supra, Fisk v. Venable, supra, Ingles v McMillan, supra, and Lewis v. Russell, supra, a review of all the cases is made, and in the Pruitt ...