167 Ind. 421 | Ind. | 1906
Appellant was convicted upon a charge of burglary and grand larceny.
Appellant’s wife testified that after her husband’s arrest she went to Mr. Wilson’s office and talked to him about defending appellant—told him how it was, and what he was arrested for, and wanted to know his fee. Mr. Wilson telephoned over to the criminal court, and learned that appellant was arrested for stealing goods. He asked if she had any money, and she said, “No,” and he said he would go and see about it, and see appellant, and see how hard he would have to fight, before fixing his charge.
Appellant testified that Mr. Wilson came to the jail and told him that his wife had been over talking to him, and asked if he had an attorney, and said he would like to have the case, and, believing that his father had already hired him, appellant said it would be alright.
Mr. Wilson testified that he had no employment, but that Mrs. Juliana came to his office and said her husband had been arrested for receiving stolen goods and had no attorney ; that she did not appear to know whether he had been tried in the police court, but spoke of the grand jury, and he then called up the criminal court and was informed that appellant had been indicted, and was charged with grand larceny and burglary; that he then went to the court-house and examined the indictment, and there saw that Mr. Little appeared as attorney for appellant, and then went to the jail and asked appellant whether he had an attorney, and he said “yes,” and that his father had employed one, and he did not care to employ an additional attorney in the case; that no fee was agreed upon, but Mrs. Juliana said she would get the money for the fee from her friends if he would let her know the amount, but, on being informed that
Upon these facts appellant objected to the appointment of Mr. Wilson as special judge, and the court overruled such objection and appellant excepted.
In the case of State, ex rel., v. Hocker (1894), 34 Fla. 25, 15 South. 581, 25 L. R. A. 114, the supreme court of Florida said: “The law which disqualifies a judge who has been of counsel in the case intends that no judge shall preside in a case in which he is not wholly free, disinterested, impartial, and independent. The great principle should
It is our conclusion that Mr. Wilson was upon the facts disclosed incompetent to act as judge in the case, and that the court erred in making his appointment over the objection.
The judgment is reversed, and the cause is remanded with instructions to set aside the appointment of the special judge, and for further proceedings.