*1 22 1920.
Syllabus. 255 U. S. Page, 673, 137 U. States v. 678-682; Fletcher, S. United 88-91; U. Ide 84, States, 148 S. v. United U. S. 517; 150 Bishop v. S. States, 334, But, United 197 U. 341-342. pointed below, out the court by designation the mere of the place for out the not carrying sentence did involve jurisdiction (Schwab Berggren, the court v. S. 442, U. In re U. 451; Cross, 271, 277-278), S. if erroneous would only retaining lead to accused for a new designation of confinement, and we see place no reason under the condition of the record to reverse the action the court subject. below on that What we disposes have said every material conten- have, tion the case, although we not expressly noticed many suggestions based on supposed duty trial, court-martial, negative before the every possible condition might the existence of which prevented have that court case, from trying the which was the among possibility that the officer under trial have be- might longed to a command which did power not come within the to call a court-martial camp conferred com- Orders, General 56, particularly mander No. since the suggestion subject on now made seems to have been afterthought an to have been called to atten- way. tion in any the court below
Affirmed. ET BERGER AL. UNITED STATES. v. THE
CERTIFICATE FROM. CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. Argued January 31,
No. 460. December 1920. Decided 1921. Upon 1. affidavit of a a case in District Court, conformity Code, 21, averring with Jud. the affiants before belief whom the per- case is to tried v. UNITED
BERGER STATES. Argument for the United States. him, stating reasons, sonal bias or facts and which, true, fairly if substantial character and establish a mental judge against prevent' attitude of the the affiant which im- *2 partiality judgment, judge duty it becomes the to retire from the case. P. 30. judge may pass upon sufficiency
2. The but not alleged. falsity of the facts (cid:127)upon truth Id. alleged upon
3. The facts the affiant’s information and belief. P.34. Held,
4. filed in this affidavit case was sufficient. opinion. The case is stated in the Seymour Henry F. Mr. Stedman and Mr. Cochems et Berger al. General for States:
The Solicitor the United requirements with the complies Unless effect, judge it Code, Jud. can have no and 21, of § proceed is can properly whom.it directed the trial. Ex American parte 225 S.
Glasgow Moyer, 420, U. v. 35, U. establish that when a Co., 45, 230 S. Steel Barrel is not in time, the affidavit filed is holds judge or, for overrules the law, any reason, in insufficient is sub- case, continues his action application ap- if ject and, improper, reversal to review his that, unless acts are so reviewed court, but pellate shows, not void. latter case more- reversed, can judge before the clearly, appear what must over, very be disqualified. Henry viz: v. following cases,
It is believed K. Fairbank 872; Ex parte N. Rep. 201 Fed. Speer, Rep. 195 Fed. Glasgow, Ex 978; parte Rep. 194 Fed. Co., 836— Rep: Co., Trust Equitable re In Fed. 780; courts the lower have construed federal which are all That (1) unanimity holding: is There this section. trial must deter- judge of the affidavit Argument for the United States. SU. mine whether time filed whether state- ments are sufficient in to comply law with the statute; (2) that regard judicial his action in this and subject upon writ appeal, review error or but not to col- being (3) lateral attack as void; applies only §21 cases which the affiant those can facts state tend to show personal prejudice or bias; (4) that.the prejudice or bias which will disqualify is prej- udice or bias and not litigants merely out of a arising of their case. prejudgment Only one dis- trict whether .the may, considered under any circumstances, into inquire the truth or falsity of made, statements and he held that, if the act denied this power under all circumstances, it would be uncon- stitutional.
A charge mere bias and prejudice is a mere expression *3 mind opinion. an Bias or is a state of which can proved be only by facts and declarations from which it can be inferred. The act therefore that requires the and the facts reasons the belief shall litigant’s be stated. judge Whether the is depends, then, disqualified not upon fact mere that prejudice has been charged, .but it upon the facts which is to show alleged tend such prejudice. Unless the facts so alleged were intended to be decided, considered and by some authority, have a prove' tendency prejudice, the requirement should be stated was an idle ceremony. Congress having excluded- other every judge from so, the doing against whom the charge is made must upon pass of the affidavit sufficiency before he retires from case. The affiant must state the facts of his own knowledge and not on information belief. The statute requires .and shall be stated, so that action may be facts Obviously,, based on mere belief. it would be insufficient to allege piejudice exists, that the affiant believes because there is has a done or such and rumor said STATES. BERGER v. UNITED Argument for the States. United of fact thing. except such This would not be a statement rumor, and it is prevalent the bare fact that there is a that affiant believes the by adding made no more a fact per- rumor to be A statement that some unnamed true. judge’s son has told him about the words or something conduct Nor would would be insufficient. be equally the name of his in- made more sufficient any by giving formant. would then state would only fact he which a be the third had made fact that some statement. that the act would It was not or intended contemplated have, It not have wide could very application. been disqualified intended that be should upon rumor or on mere belief of a based part litigant is only is gossip. idle prejudice, Since.it ordinarily out grows and therefore litigant, contact with relations, dealings, some previous the. to be within supposed well be judge, the facts is evidently This the view knowledge litigant. Steel Barrel Co., in Ex American parte, of the statute taken a state- any by If to be served supra. purpose requiring litigant must be facts which facts, ment these Many the facts knowledge. to state of his own able within are not person’s rights depend civil of them through his He learned personal knowledge. has testimony whose he others, and he knows witnesses to make can them. He issue prove right facts and have his in order that he may prove court can however,- pred- No judgment, determined. rights on information merely fact any icated on which he states *4 by opposite unless the fact is admitted and belief testimony. We are by competent or establishéd party in he now, however, required a case dealing It is not facts, merely and. not belief. to state expected prove to or witnésses called will be made issue any is expected The court the affidavit. stated anything affidavit itself. on the to act
Opinion of the Court. S.U. in this facts stated affidavit on Even information and belief do not to personal prejudice. tend show case_it
In the present necessary is not to determine judge whether a is bound in all accept circumstances to as true the of facts statement contained ah affidavit of prejudice, for in this judge apparently case the over- application ruled the of insufficiency because the manifest without to its to falsity, reference known the judge proven by report a stenographic clearly which, case, excerpts his another remarks were but professedly quoted grossly fact distorted But if this, affidavit. the statute is a ques- means there tion for not, serious consideration whether as held parte in Ex K. Co., N. Fairbank by Jones, J., 194 Fed. Rep. 978,. unconstitutional. For it is serious to thing say that a must judge practically brand himself unfit, own court records his as unworthy merely litigant who, utterly unscrupu- because some it may be, is lous,- fit has' seen to file an that' falsely, charging he done and said or things which he has not done say said. To this would put power every the' it in litigant conscienceless insult humiliate' an honor- that, high-minded judge will, able at and leave powerless protect himself from of a record disgrace prejudiced is so showing that he as to be hold unfit his office. opinion delivered the
Mr. McKenna of. Justice court. ’ follows:
Section Code provides Judicial civil any action proceeding, “Whenever a or criminal, or make and file an shall affidavit that whom to be tried before the action is. proceeding bias Or him has a heard either suit, such any opposite party in favor of to the *5 BERGER v. UNITED 27 STATES. 22. Opinion of the Court. proceed
shall no further therein, but another judge shall be designated prescribed manner section last preceding, or chosen in the manner.prescribed section twenty-three,, to hear such Every such matter. affidavit shall state .the facts and the for the belief reasons such or bias prejudice exists, . <- . No shall be more, entitled in any affidavit; case to filé than one such and no such accompanied affidavit be unless shall filed by a certificate of counsel record that such affidavit and application in good pro- made The .same faith.. file, ceedings shall be had presiding judge when the shall with the clerk of the court a that he deems certificate himself unable for any preside .with absolute reason to impartiality in the pending suit or action.” February 2, 1918, . into the District there was returnéd Court of the United District of States for the .Northern Illinois,, (it an will indictment in error plaintiffs be charging convenient to refer to defendants)', them ,a them 15, with June Congress violation Act of. 1917, In Act, known as the c. 217.1 Espionage Stat. due time invoked 2l charging. who, Judge Landis, trial, per at preside sonal them, bias and prejudice against and moved the assignment of preside another at trial. denied, and-upon motion was the- trial defendants were convicted sentenced to im twenty years’ and-each prisonment. From.the judgment and took sentence.they 1“Whoever, war, willfully when the United States is shall make at reports or convey'false false or statements with intent to interfere with military or operation or forces of the success naval United promote whoever, the success or or its enemies and when the States war, willfully attempt at shall in cause to cause United States is subordination, disloyalty, mutiny, military duty, refusal in- the States, willfully United or shall or- fofces naval obstruct recruiting States,' or enlistment service United shall ~ (cid:127) punished TERM, U. S.
Opinion of the Court. Appeals Court United States Circuit the case cer reciting that court, That for the Seventh Circuit. *6 upon the 21 have tain of law under arisen questions and is in doubt the court and which motion of this advice and instructions upon which it desires the of the affidavit sufficiency court, certifies questions certifies thereunder, and also duty and of the of.the such motion. proceedings upon the affidavit and other unnecessary parts, formal and affidavit, omitting “that represent (defendants) is as follows: Petitioners His Honor severally verily believe jointly and bias a Landis has Judge Kenesaw Mountain defendants, to wit: and certain of the prejudice against Germer, Adolph and Victor L. F. Kruse Berger, William J. Louis with cause, impleaded defendants in and this in this Tucker, defendants Engdahl and St. John Irwin are beliefs petitioners’ case.- That grounds for was born following' Adolph Germer That said facts: L. that Victor Prussia, province Germany; a state F. that William Rehback, Austria; Berger was born Judge that said extraction; immediate Kruse is of German defendants against said prejudiced Landis is and biased the de- support thereof their'nativity, and because belief,, on that, fendants on information allege, said Landis Judge said day about the 1st November about anything worse ‘If has said anybody substance: I can it so to know I like the Germans than I would have with charged who was referring it.’ And to á German use ‘ men money plenty had stating Germany the United to do to going wait she is see what ^nd have must ‘One States,’ Landis substance: said.in against very judicial mind, prejudiced not be indeed, hearts Their country. in this the German Americans kind is the This reeking defendant disloyalty. are with it has propaganda this kind of of a man that spreads the Ger- all spread it has affected practically been until v. UNITED STATES. BERGER Opinion of the Gourt. of; kind excuse the- country. This same in this mans people German protect offering defendant the_ in this country, the pacifists kind of excuse offered same and have the interests United States who are , thing they call by defending enemy at heart the same You are darling people. his the Kaiser and country from over to this kind that comes of a man Ger- and war. have the Kaiser many away get You such, country and lived of this a citizen here-as become you Germany is at country this war and now when you protection. country gave seek to undermine all the practically same mind You are of the German- you yourselves call country,' in this are Americans reeking, with dis- Your hearts German-Americans. mine, who safeblower, is a loyalty. I he know friend *7 robber in He wás a bank France. making good soldier time, and peace his business that was years, for nine him andThis soldier, and as between good is a now he the safeblower.’ defendant, prefer I ayer they have at no “These defendants-further contrary they have Kaiser, but on the> the time defended Germany every and autocracy to an opposed been herein, L. defendant Berger, country; other Victor daily paper; Leader, Milwaukee a' Socialist the editor party; the Socialist Secretary of Germer, National Adolph Magazine, Kruse, Young Socialists F. the. William editor disapproved Engdahl J. and Louis publication; Socialist .a into this war. States United. the entrance the defendants further petitioners “Your aver.that States and in the United were bom Engdahl Tucker countries, and are immediate enemy not bom were countries, but enemy bom persons .of descendants-- Berger, impleaded because verily believe Berger, Kruse as Germer they as well and Germer’that impartial trial, and a fair and not receive can Kruse Landis Judge against said of said prejudice Opinion 255 U. S. of the Court. defense prejudice Germer and Kruse would Berger, , in this Engdahl impleaded Tucker and of said defendants case.” accompanied by the certificate
The affidavit Stedman, attorney defendants, for Seymour application good were made in faith. certified are as follows: questions The (1) prejudice the aforesaid affidavit of sufficient Is operation of for the provides invoke the the act which prejudice judge? affidavit of of a filing of (2) Judge right pass Did said Landis have the lawful sufficiency of his upon prejudice, the said affidavit of upon any arising filing out of the of said affidavit? question
(3) Upon filiñg of the said affidavit of Landis, did have lawful Judge of said the said power preside plain- on trial of right and to^ tiffs in error said indictment? primary questions
The basis of the judge,— question duty power under is the prej- whether the of an affidavit of bias or his compels udice retirement from the case or whether judgment upon he can affirmed and exercise the facts qualification his and the belief determine them them? based present alternatives the case.
These contentions States con- first; Defendants contend for the the United is that the second. assertion defendants tends subject mandate of section is not discretion pf the judgment judge. The assertion United *8 States is the motion and its like supporting-affidavit, sub- evidence, are supporting other motions and their judg- judicial mitted for and the exercise of decision the affi- words, In upon ment them. other the action General, to “automatic,” quote the Solicitor davit of its reasons the substance and merit depends upon but facts, judge of its and truth both and BERGER v. UNITED STATES. 31 Opinion of the Court. issue, jurisdiction pass. therefore, is, precise, and compass while not broad practically of first impression presented. now as Glasgow
In v. Moyer, 420, U. S. 225 section was to but not passed upon: referred In Ex parte American Co., Steel phase Barrel 230 U. S. the. section presented here was not presented. There proceedings in bankruptcy had progressed a decree of adjudication, who judge had conducted was charged by them and, certain creditors with bias on his based rulings in case. Such 21 use of disapproved. was § “It intended,” said, a,dis was never it was “to enable litigant contented to oust a judge because of adverse rulings made, for rulings such are reviewable otherwise, prevent but to his future action in the pending cause”’ pertinent As comment to the meaning 21,§ say, that Judge we Chatfield, against whom the affi directed, davit was said that he felt the intention of 21 “to was cause a case, transfer of the without § refer to the merits of the charge ence of bias”’ and he did so immediately, order, said, as he “that the application might of the creditors” speedily “be considered as as ..by possible Judge such might as” “be designated.” designated Another to restrain action by the latter vacate the had made, orders he to command Chatfield to resume- jurisdiction, sought. 'mandamus was It was denied. The case es tablishes or prejudice bias which be urged can must upon something be based other than rulings the' case. circuit in
The bases at was considered have guidance. They, however, not much deserve attention. Co., N. K. Fairbank parte Rep. 978, Ex Fed. may be expressing power the presiding considered sufficiency pass of the facts In Ex affirmed. Glasgow, Rep. 780, question Fed. came parte up *9 1920.
Opinion of the Court. 255 ü. S. and it corpus for a writ of habeas upon application an affidavit of filed until after bias was not appeared to pass the court was about of and when trial the case of and new trial. It judgment a in arrest upon motion stage of applicable 21 was at such held that was § 869, Rep. was Henry Speer, v. 201 Fed. proceedings. of bias require for mandamus affidavit petition a Judge Speer to be to the senior against District certified its sufficiency, that the latter determine judge might circuit jurisdiction Speer exercising and restrain ground of The writ was refused on the case. 21 in it omitted to did not conform to § bias, held, bias, charge a such charge “personal” court, (Circuit condition. The Court necessary a being Circuit), Meek, said, by Judge the Fifth Appeals by party of an affidavit making “Upon there is provisions necessity of section under the duty examining the affidavit upon the imposed specified, or not it is the affidavit whether to determine legal the statute and to determine required then he If finds it to be sufficient legally he sufficiency. perform pre- or than that duty further has no other .to 20 of the Judicial He is relieved scribed section Code. duty deciding trying from the delicate This comment disqualification.” of his own question . view of and marks a distinction sustains defendants’ sufficiency of the affidavit determining legal between statements, of its a distinction truth passing . presently advert. to which we shall they go, to the extent (one being excepted) The cases militate Government against contention Their the words of the section. they have confirmation party any action is that “whenever declaration an affi shall make and file criminal, civil or proceeding, or proceed before whom the action davit prej- a'personal or heard to be bias ing tried BERGER v. UNITED STATES. Opinion of the Court. favor, him or in
udice either any opposite suit, such shall proceed no further *10 shall therein, designated but another be . . . There no to hear such is ambiguity matter.” in the dec- seemingly nothing upon laration and which construction nothing qualify can be temper or. its words exerted — or It is in its permission effect. clear and direction. It permits affidavit of prejudice bias or to be jm and if it filing, accompanied by filed be certificate counsel, of directs an immediate of by action cessation judge whose averred, the bias or is and in his . .stead, designation the of another And judge. there is conjunction; the its elements purpose complements other. of is of each The exclusion one judge emphasized requirement designation the of the of another.-. itBut is said that is modification there of the absolutism provision quoted succeeding of the declaration the “affidavit shall state the facts and the reasons for prejudice. of the the belief” of the existence bias or It urged purpose requirement to submit sufficiency of -reality and the facts to the judgment support and their averment belief or urged affiant. It is in effect the requirement of'the -that it purpose, else, have no other is idle giving can to the affidavit which overrides everything. automatism requirement. this is a inisunderstanding But It and extensive use as out pointed by Judge other less Henry supra. v. It is Speer, precaution -against Meek and ir- abuse, removes averments belief from the opinion, adds to unsupported responsibility supplementary penal- of counsel the aid certificate Nor do think that this perjury. attached we view ties affidavits. room for frivolous Of course reasons gives litigant facts for-the belief the entertains áre an must fair part give support essential prevent of a bent of or im- charge mind
Opinion of the Court. 255 U. S. judgment. The affidavit of defend- impartiality pede facts character. The and reasons has that states ants fanciful but or substantial and formidable are not frivolous have relation to the attitude of Landis’ mind defendants. toward however, said, that the assertion and the facts is,
It information and on belief and that hence the are stated wholly insufficient, requiring affidavit is facts merely not belief.” The contention is that stated “and expected court is to act on the affidavit itself” “the Congress “the act of facts— that, requires therefore American rumors, parte Ex opinions, beliefs, gossip.” Co., supra, S teel Barrel is cited for the .contention. by “opinions, what counsel means We do not know beliefs, rumors, gossip.” belief of *11 if opinion of concern and be nearer to section makes belief, than both are of influence persuasion farther from in the affairs of universally regarded and as of influence is conduct, men and determinative of their and if not 21 strange regard that should so them. § not by We concede fulfilled the asser § but gossip” tion of “rumors or such can disparagement not to the affidavit this Its statement applied be case. place and-character, time and and the value definite information and procedure averments on belief recognized. the law is To refuse their application arbitrary would its unavailable remedy be and make § in many, only if not in most, permits cases. The section the affidavit of Ex Steel party, parte a and American Co., Barrel supra, decides, that it must based facts antedating trial, during occurring those In trial. Case a defi present the information was of incident, Besides, nite and its time place given. were assumption it cannot of 21 prej be the the bias or § particular by udice of a a case be known would everybody, necessarily, therefore, deny party to a vt
BERGER UNITED STATES. Opinion of the Court. the use of information received from others is to deny him at times benefit the section.
We of opinion, therefore, that an affidavit -upon information and belief satisfies the section and that upon its filing, if it objectionable show the inclination or dis- position of the judge, which we have said an essential condition, it is his duty to. no “proceed further” in the And in case. this there is no serious detriment to the administration justice nor inconvenience worthy of mention, for of what is it concern to a judge to preside particular a case; of what concern to parties other have him so preside? And any serious delay of trial is by avoided the requirement the affidavit must be filed not less than days ten before the commencement of the term.'
Our interpretation of 21 has therefore no deterring consequences, we cannot relieve from its imperative conditions a dread or prophecy that they may be abusively used. They can only be so by used making affidavit; charge of, false and the penalties of, restrain from perjury perjury in him who makes that — the affidavit, connivance therein of counsel thereby sub him to jecting disbarment. And upon what inducement and for what achievement? No other than trying the case rather another, one than neither nor having counsel voice or influence in the designation of other; the section permits care “one but such affidavit.” *12 concede,
But if we out of judgments deference to that a foundation respect, we for the dread, a possibility to must prophecy,-we the Congress conclude was aware of them and considered that there were countervailing bene- fits. At rate we can any only deal with the act as it is it expressed and enforce according to its expressions. is it our function to approve Nor or disapprove it; but may say that we solicitude is that the of tribunals the TERM,
Opinion of the Court. 255 U. S. only not be the country impartial shall controversies give to but shall assurance submitted them section, free, any to use the words of the impartial, might disturb prejudice” or thát the normal course “bias And to this the impartial judgment. accomplish end a judge from the decision presiding' withdraws section explicit alleged. the truth of matters Its declara- upon that, upon making tion proceed whom it is directed “shall no judge against designated in therein, but another shall be further preceding, the section last prescribed the manner twenty-three, in the section prescribed chosen manner easy matter.” And the reason is to divine. to hear such upon the truth of the To commit to the a decision which the section is gives chance for the evil facts by appeal is It comes remedy inadequate. directed. The exist, it its evil and, if has worked after trial precarious. tribunal is judgment reviewing it a can goes nothing It fortified be presumptions, there disposition than a more elusive of estimate or decision ingredient. is a a mind which there motion for his dis- overruling the of defendants After permitted to filed Judge Landis a steno- placement, report language the incident and graphic We,.however, was based. have discussed motion interpretation under our of 21 it is excluded because from consideration. to first certified, and then to the questions come
We prejudice, Yes, is, that the answer, we To the operation act. second sufficient invoke of. indicated, Judge have that, the extent we answer we sufficiency right pass lawful Landis had No, is, third answer, we To affidavit. power preside right lawful had' no Judge Landis qñ upon the indictment. trial of defendants
n Soordered. *13 STATES. v. UNITED BERGER ' Pitney. Day dissenting. JJ., 22. dissenting. Day,
Mr. Justice for this and similar practice, the to settle this case is As courts, and as the federal in the may arise which cases record, I aspects some consider does not opinion me to reach a impel which the reasons to state venture by majority. the that announced conclusion than different in number a exist that statutes shows An examination These consideration. subject under covering States ::or requirements in the character, and vary in statutes which or establishing prejudice the bias par- of a him' trial at the sitting to abstain require belief of affidavit of them an ticular case. In some a be had before cannot or that fair trial prejudice, a him. Other disqualify judge, is sufficient particular certificate require supporting statutes affidavits the matter of. on counsel, hearing for a and provide required matter is In States the disqualification. some judge. to be heard before another consideration, had statute,
The federal now under introduced Code, Judicial origin an amendment to the adoption in the House of when Representatives As adopted Code was under consideration. forth the reasons to set required the affidavit was House, existed prejudice the belief that bias suit. opposite in favor of the party, 2626, et Rec., 46, part 3, seq.) vol. Cong. p. (See the section bill came before the Senate When reasons for facts, and the require as to so amended existed, forth, to be set prejudice bias or belief accompanied by required affidavit the application that it and of record of counsel certificate Cong., 61st (Sen. Doc., No. faith. good are made that the section the-form apparent is thus sess.) It 3d the Judicial Code in- finally part became which which should disqualify the bias or tended n
Day Pitney, JJ., dissenting. S. 255 U. should be personal against objecting party,' and that it should be established *14 should set forth the reasons and facts which the charge of bias or prejudice was based. The evident purpose of requirement showing this a of require to such reason's and facts as prevent imposition upon should court, the axid establish of the of the affidavit propriety the'latq disqualification.- “It is not Mr. sufficient,’’ said Supreme Brewer, Justice of when a member of the Court in Kansas, City Emporia Kansas, 627, v. Volmer, of '' that a prima case a only shown, be such case as would fade require the sustaining juror. of a to a It must challenge be strong enough overthrow the favor presumption in trial-judge’s the of his integrity, and clearness the perceptions.”
I accept opinion the majority judge, the the (cid:127)under requirements of this may pass statute sufficiency of the affidavit, subject to a review of his decision an appellate court, if .it be sufficient to and, personal show bias and prejudice, should not But.I try the case. am'unable cases agree of. the character now under consideration the statement of the affidavit, unfounded, however must accepted by be the judgb as a sufficient for his disqualification,. reason leaving the vindication of integrity independence the. of the judge ,of to the uncertainties and a inadéquacy prosecution for if it should perjury, affi- appear.that davit contains known misstatements.
Notwithstanding purporting compliance statute, with the the court has a to use fight reasonable, all means to protect itself imposition. Davis v. Iowa, Rivers, 435. bias prej udice judge against the defendants this case said by language imputed established as his concerning utterances the attitude of the German people .during the progress war. v. UNITED
BERGER STATES. Day Pitney, JJ., dissenting. f
The affidavit filed contained a statement o alleged. language judge, concerning German who was. “charged” making the statements set forth. Upon receiving the affidavit at once inquired of counsel whether language ascribed to him was not in fact uttered connection with disposition case of United States one Weissensel in sentencing him after conviction'by jury of a violation of the Es pionage Act the same court. Counsel informed the Judge that such was the fact. The Judge asked counsel for Berger had whether he any made effórt to ascertain the accuracy of the alleged statement to have been made by the court. Counsel replied that he had not. It would seem incredible that any judge could have made such statements concerning a defendant yet tried his' *15 - in court, advance of trial and upon mere óf an. charge offense. in open Counsel court admitted that the offend ing language in was used sentence after passing conviction' in Weissensel’s case.
Moreover, upon the affidavit being filed, after this admission of counsel, the District Attorney offered evidence a of transcript what took place and what was in fact said of Weissensel. The sentencing Judge this permitted stenographic sworn to report, by an experienced stenographer, who ifc, made be a true and correct of the report statements made the proceed- had, put to be ings into the that record, saying the truth be shown should falsity, record connection he was of although opinion that the facts stated the affi- davit failed to establish bias or prejudice against the defend- would ants which him disqualify at the trial. sitting This stenographic sent with the report, up certificate it, and made part which there no reason to believe fails to is in accurately place, state what took marked with statements of contrast the affidavit which the de- made when seeking disqualification fendants of the TERM, 1920. U.S. JÍ., ánd
Day dissenting. Pitney, stated, already have shows, It as we Judge. conviction Weissen- after Judge were of the utterances - It was sentence. passing when he made sel, and were concerning Ger- Judge shows that the statement different from stated quite man-Americans was man who type to the and referred had. him for sentence. been convicted and- before was defendant said Judge the convicted speaking of almost the whole who branded type he was of the of man that one German- population, German-American did defendant, talking such stuff American, such as the of them could more than thousands damage, people to his he, loyal citizens; and by being good overcome the occasional defendant, an illustration of Ameri- so much to can of conduct had done German birth whose in America. While this damn the whole ten million there language temperate, have been more does might appear anything fairly establishing not that- to be in people his at the German directed observations in-.,general, but rather that his remarks aimed at were defendant, one as was the violation-of law. convicted court, As I opinion understand the notwithstand- ing counsel, the admissions of and the sworn stenographic report bf must place, accepted, what took the affidavit be and, matters, true, if it which if would tend to discloses must' prejudice, given establish bias-and the same' be and, It disqualified. effect does seem comports requirements to me that this conclusion with the and facts must be set forth statute that reasons *16 It the judge. places the consideration of federal the willing at of who to make mercy courts the defendants are took trials in the place previous affidavits as to what at .court, knowledge judge, which the of the the uncon- testimony report may tradicted of an official show to be untrue, many may greatly retard; and in districts the of criminal causes. trial v. UNITED
BERGER STATES.. Day dissenting. Pitney, JJ., sentencing I in Weissensel While, said, as the have in his might observations, Judge temperate been more have of the I am unable to find that the statements of counsel when read with connection the admissions gathered place and the took established facts as to what from the such stenographic report, showed evidence defendants as re- against bias or the prejudice this affidavit to quired filing mere upon the of record, permit misleading placed statements to proceed and to no further with case. any had ac- judge
It not appear does the trial only one of whom defendants, with any of the quaintance such, any bias or of German had birth, he him against prevent of them as any would To permit trial. fairly impartially conducting adjudication final parte an ex affidavit to become effect shown, facts disqualification of the of a when fraught established, as are to me such here seems to.be duties discharge of independent much to the danger of the abusé by judges, open federal and to a door the statute which is intended to be privilege conferred question. light In my judgment propounded, the questions as to record, be answered of this should of the disclosures when read prejudice, first: That the affidavit ‘ record, was insuffi- in the disclosures light the other to the second: As the act. requirements to meet the cient another might called have That while the affidavit, he had sufficiency pass upon saw fit to do- if he himself pass upon jurisdiction affida That mere third: As so. thwi no further judge to proceed did require vit accusation upon the defendants the trial them. . Pitney dissent. concurs in this
Me. Justice
McReynolds, J., dissenting. 255 U. S. dissenting. McReynolds, Mr. Justice opinion -Tarn unable follow the' reasoning ap- proved by to feel majority fairly' scope or of its certain If consequence. charged an admitted .anarchist existing murder should affirm án prejudice against him- specify self that the had depre- certain made ciatory concerning remarks all anarchists, what would be the result? Suppose stenographic official notes or other clear evidence falsity should demonstrate of an necessary would it be for to retire? And what should be if done dreams or visions were the basis of an alleged belief? conclusion gives announced to the
.The effect statute seems beyond unwarranted its terms and probable intent Congress. Bias and of..
synonymous words and or leaning denote “an opinion adverse anything just or grounds without before suffi- cient state of mind. The statute relates knowledge”;—a only opinion to adverse leaning towards individual application and has no appraisement to the of a class, g., assassins, e. revolutionists, traitors.
To claim without insufficient; bias more “the facts and the reasons for the belief such bias or prejudice out, exists” must be set I think, and plainly, this must be done any.reviewing order tribunal support whether suffice to determine honest belief in the disqualifying state of mind.
Defendants’ affidavit adequate ground discloses no for believing that personal feeling against any. existed one of them. The prejudice was towards cer- indicated tain malevolents from Germany, a then country engaged in hunnish encouraged warfare and notoriously by many of its natives who, unhappily, had citizenship obtained -here. The words judge (I-do attributed not credit the affidavit’s accuracy) may be construed as show- fairly
.BERGER UNITED STATES. v. J., McReynolds, dissenting. ing only deep persons detestation all German ex- traction who abusing were at time wickedly privileges *18 granted by indulgent our laws.
Of if entertains no should he course, preside personal prejudice any party actual towards this honestly, obvious disqualification Congress added enter- tained belief of based fairly such when adequate facts Intense dislike of. and circumstances. a class does not fender judge incapable administer- ing complete justice public A to one of members. officer disloyal who entertained towards no aversion German immigrants simply was unfit during the late war place. for his overspeaking judge And while “An no well tuned cymbal” amorphous dummy is an neither unspotted by receptacle human emotions becoming judicial It power. purpose Congress not the empower unscrupulous seeking escape defendant merited, punishment to remove solely because enemies emphatically he had domestic condemned danger. concern of time national small, the con- judge in matters of this kind is indeed but very great. public cern
In committed no error when my view -the trial insufficient, and re- held he considered fused to retire.