11 P.2d 902 | Cal. Ct. App. | 1932
Petitioner seeks his release from a committment issued upon an order adjudging him in contempt and sentencing him to the maximum penalty of five days in jail and a $500 fine.
The proceedings rest upon the following state of facts: The petitioner was chief counsel for the defendant in an action entitled People v. Kelly pending in the Superior Court of Alameda County wherein the defendant was charged with manslaughter growing out of an automobile accident in which two persons were killed. The cause went to trial before Judge Fred V. Wood and a jury on October 26, 1931. The cause was given to the jury on November 5, 1931, and on the following day the trial judge called the jury into court and ordered their discharge, stating that he had been informed of misconduct on the part of certain members of the jury. The cause was then continued to a later date for a new trial, but in the meantime Judge Wood declared himself disqualified because of prejudice against the defendant and suggested the appointment of another judge by the Judicial Council. In due time the Judicial Council assigned the respondent, Judge Stanley Murray, to act and preside in the trial of that case. On December 7, 1931, the day on which the case ofPeople v. Kelly was set for trial, the defendant Kelly personally presented in open court a document entitled "Statement of Defendant Objecting to Hearing, etc.", which was, in short, an affidavit executed by defendant Kelly alleging that Judge Murray was disqualified from proceeding further with the trial of his case by reason of bias and prejudice upon grounds specified in the affidavit. Counter-affidavits were filed by Judge Murray and by the district attorney's office and the question of disqualification was duly assigned to Judge Murphey, one of the judges of the Superior Court of Alameda County, who, after a hearing held on December 11, 1931, ruled that Judge Murray *628 was not disqualified. On January 15, 1932, the case of People v. Kelly came on duly for hearing and resulted in a verdict finding the defendant guilty of manslaughter. On January 29, 1932, while the defendant Kelly was before Judge Murray for sentence, he was asked who prepared the affidavit alleging the disqualification of Judge Murray and was informed by the defendant Kelly that such affidavit had been prepared by the petitioner herein. After sentence had been imposed upon Kelly, Judge Murray then issued a citation for contempt against this petitioner, ordering the petitioner to appear before him on February 4, 1932, to show cause why he should not be adjudged guilty of contempt in the preparation of such affidavit. On the day set a hearing was had before Judge Murray, at the close of which the petitioner was adjudged guilty of contempt and sentenced in the manner above stated.
The affidavit which is the basis of the contempt charge covers twenty-six typewritten pages. It contains a full recital of the proceedings before Judge Wood in the discharge of the jury in the first trial of the case of People v. Kelly, and this is followed by a lengthy statement of facts upon which the affiant based his conclusion that Judge Wood was biased and prejudiced against the defendant Kelly and the petitioner herein. In this connection it is alleged that Judge Wood, having declared himself disqualified to act further in the cause of People v. Kelly, became actively engaged with the district attorney's office in the selection of Judge Murray to try said cause; that having declared himself disqualified he urged the Judicial Council to assign Judge Murray for that purpose without permitting the parties to agree upon another judge; that he and the district attorney's office were in consultation with Judge Murray for the purpose of procuring him to sit in the trial of said cause; that Judge Wood engaged in a tirade against the defendant Kelly "for the purpose of intimidating and influencing jurors" who might be called later to try the Kelly case; and that in many other ways Judge Wood was active in carrying his bias and prejudice against the defendant over into the further prosecution in the proceedings of the case of People v. Kelly. The conclusion is then drawn in the affidavit that, by reason of the provisions of section 170 of the Code of Civil Procedure, which authorize the assignment by the Judicial *629 Council of another judge when the parties have failed to agree upon another judge, the assignment of Judge Murray was illegal and irregular and that the activities of Judge Wood and of the district attorney's office in procuring said assignment were the result of the admitted bias and prejudice of Judge Wood against the affiant. It is then alleged on information and belief that, before the assignment of Judge Murray to sit in said cause, Judge Wood and the district attorney's office had been in consultation with Judge Murray and had obtained his consent to succeed Judge Wood as the judge in said cause. The affiant then resorts to his conclusion that the assignment by the Judicial Council was illegal for the reasons above stated, and that Judge Murray must be presumed to have known the provisions of section 170 of the Code of Civil Procedure, and that, in insisting upon sitting in the trial of his cause notwithstanding the illegality of his appointment, Judge Murray displayed bias and prejudice against the affiant. (Here it should be noted that at the hearing on the contempt proceedings all those portions of the affidavits relating to Judge Wood were eliminated and the petitioner herein was expressly informed by the trial judge that those portions of the affidavits were not assigned as contemptuous by him and that he was not concerned with them in any way.) The portions assigned as contemptuous begin with the averments that the affiant was informed and believed that Judge Murray was biased and prejudiced against him and that for that reason the affiant believed that he could not have a fair and impartial trial before Judge Murray. The portions of the affidavit relating to the alleged consultation of Judge Murray and Judge Wood prior to the assignment of the former and the conclusion that Judge Murray must have known that his selection was illegal are assigned as contemptuous, and in this connection all those portions of the affidavit relating to the proceedings following November 27th, when Judge Wood declared himself disqualified, and including the assignment of Judge Murray by the Judicial Council and the statement of fact that the affiant had not agreed upon Judge Murray and had not signified his inability to agree upon another judge are assigned as contemptuous. It is then alleged that "it is generally understood that said Stanley Murray is by temperament a convictor with an active leaning and prejudice *630 and bias against the defendant and in favor of the prosecution" and that for this reason his selection was suggested by Judge Wood and the district attorney. It is then alleged on information and belief that Judge Murray has shown prejudice and bias against the affiant by agreeing in advance of his motion for a continuance that he would force the affiant to trial without the attendance of the petitioner herein, who was engaged in the trial of another action in another county. This allegation is based upon the further averment that the information regarding Judge Murray's attitude in reference to a continuance of the trial came to affiant through a statement of the district attorney's office made to his counsel, the petitioner herein.
[1] At the outset the petitioner argues that the alleged contempt was not a direct contempt committed in the immediate view and presence of the court. We are in accord with this view. Section
[2] For these reasons we conclude that the filing of an affidavit of disqualification is the institution of a trial of that issue which is expressly authorized by the code section, that such filing cannot, therefore, be deemed prima facie an act "tending to interrupt the due course of a trial or other judicial proceeding" (sec. 1209, Code Civ. Proc.); that, because the truth of the allegations of the affidavit and the good faith of the act of filing are issues to be tried before another judge, the judge accused is on the face of the record disqualified from adjudging the parties in contempt (Briggs v. SuperiorCourt,
[3] But for an entirely unrelated reason the judgment here under review must be annulled, and that is that the petitioner was not given a fair trial or any trial upon the charge upon which he was convicted. At the outset of the hearing of the contempt proceedings the petitioner objected to the jurisdiction of the court and this objection was overruled. Then the trial judge, without being sworn and without offering himself for cross-examination, or otherwise, proceeded to state his views of the conduct of the petitioner and stated his own frame of mind and his own impressions as to the charges of disqualification, and then, over the objection of the accused, admitted in evidence affidavits filed by the district attorney and himself in the proceeding before Judge Murphey which questioned his *634 qualification to sit in the case of People v. Kelly. These affidavits having been filed in a separate proceeding were not admissible in evidence in this proceeding under any theory of our legal procedure. The unsworn statements of the trial judge were not evidence of any fact.
The petitioner called to the stand Judge Fred V. Wood. Judge Murray refused to let him testify. In the disqualification affidavit the affiant had alleged at great length the proceedings taken by Judge Wood in the discharge of the jury in the first trial of People v. Kelly, the later voluntary disqualification of Judge Wood upon the ground of his bias and prejudice, the activity of the judge in conjunction with the district attorney in the selection of Judge Murray to succeed him, the asserted illegality of the assignment of Judge Murray, and, from these facts, the affiant drew the conclusion that Judge Wood and the district attorney had purposely brought about the assignment of Judge Murray and had given such wide publicity to the admitted prejudice of the former that Judge Murray would come to the trial of the cause with a fixed prejudice against the defendant and an inclination to carry out the prejudices of Judge Wood. The petitioner offered to prove by the witness that, before he disqualified himself in the Kelly case, Judge Wood brought about the selection of Judge Murray, and that afterward he sought to direct the proceedings in the Kelly case. He offered to prove by the witness "everything set forth in the verified statement where Judge Wood is referred to". This offer was rejected on the ground that it was incompetent, irrelevant and immaterial. This ruling was not mere error. It was a complete denial of a right of trial.
The tendered evidence was of course material to the issues involved. If all the statements relating to Judge Wood were true then the entire good faith of the affidavit of disqualification was established and the petitioner should have been adjudged not guilty of contempt. If these facts were true it was the privilege, as well as the duty of the petitioner to his client, to present those matters in an assignment of disqualification. We should not, however, be understood as passing upon the truth of any of these allegations or as approving the intemperate language in which the *635 allegations are made. But what we wish to emphasize is that all the matter was eliminated from the contempt proceedings by Judge Murray and the petitioner was commanded to answer the charge of contempt as limited to the other portions of the affidavit. Those matters were, however, an integral part of the facts from which Kelly concluded that Judge Murray bore him prejudice; they were part of the "information" upon which other allegations made on information and belief were based, and they were substantial evidence of the good faith of the affidavit.
[4] Elaborate findings were made following the hearing in which it was found that all the allegations of the disqualification affidavit were untrue; but there is not a word in the evidence upon which this finding can be based. In filing the affidavit of disqualification the affiant drew the conclusion that he believed Judge Murray was biased and prejudiced against him and stated the information upon which that belief was founded. There is nothing in this proceeding which goes to show that that information was not honestly given and that those beliefs were not honestly entertained. There is nothing to show that the petitioner herein did not act in good faith when he gave this information to his client in the preparation of the affidavit. The finding of want of good faith is without any evidentiary support. On the other hand it must be presumed that the petitioner acted in good faith and no presumptions can be indulged in to support the judgment. (Hotaling v. SuperiorCourt,
Thus, even though we were to treat this as a direct contempt, there is nothing in the portions of the affidavit to which the proceedings were limited by the respondent which is contemptuousper se or which upon its face appears to be purposely and gratuitously offensive. The paper was filed in accordance with the express privilege given by section 170 of the Code of Civil Procedure, and, if it was filed in bad faith, or if matter purposely or gratuitously *636 offensive was included (Hotaling v. Superior Court, supra) or if it contained untrue charges against the court which the petitioner knew were untrue and which were included for the purpose of giving offense — these were all matters which had to be proved by competent evidence. It is not a case, therefore, in which the trial judge may rest upon the record without proof and require the accused to make answer. If Judge Murray was selected by the Judicial Council without the parties having been given an opportunity to agree upon another judge, as required by section 170 (and here we must say that the record is all with the petitioner, notwithstanding the belated "amendment" of the clerk's minutes after the point had been raised in this proceeding), then the defendant Kelly and his counsel had reason to believe that Judge Murray was unlawfully selected for that position, and they had the right to assume that Judge Murray was familiar with the law in that respect, and that, in insisting upon sitting illegally he was doing so for the purpose of carrying out the alleged prejudices of Judge Wood. If it were true, as alleged in the affidavit, that Judge Murray was bycommon reputation a "convictor", the fact that Judge Wood was solicitous in having him selected to try the Kelly case was a fact which was sufficient to cause the defendant and his counsel to believe that Judge Murray would be unfriendly to them in the trial of the case. In this connection the reputation of Judge Murray is not denied. In his counter-affidavit filed in the disqualification proceedings he denied that he was in fact a "convictor", but this was not an issue. The charge that Judge Murray had agreed in advance of a request that he would deny defendant's motion for a continuance was based upon information from the assistant district attorney. This may have been mere idle boasting, but it formed the basis for the defendant's conclusion, and it is not denied by any evidence in the proceeding.
It was necessary to prove by competent evidence that the actions of the petitioner in preparing the affidavit of disqualification were contemptuous as a matter of fact and no evidence having been offered to that end the judgment of conviction cannot stand. It is not necessary to discuss the other grounds raised in the petition. *637
The order is annulled and the petitioner released from custody.
Sturtevant, J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on June 3, 1932, and the following opinion then rendered thereon:
[5] There is no provision of law for a rehearing in this court in habeas corpus cases, except in those cases specified in section
A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 20, 1932.