137 P. 574 | Wyo. | 1914
On September 7, 1912, an information was filed in the District Court of Weston County charging the defendant in the language of the statute with having on April 30, 1912, in said County and State wilfully, unlawfully, feloniously and with premeditated malice killed and murdered one John Giachino, and to this information the plaintiff in error, defendant there, was on September 9, 1912, duly arraigned and entered his plea of not guilty. On the day following, to-wit: September 10, 1912, the defendant filed his motion supported by his affidavit for a change of judge pursuant to the provisions of Section 5147, Comp. Stat. 1910. Upon the filing of this motion the court’s attention was called to the same whereupon the court announced that the matter would be taken under advisement. On the same day and before a jury had been impaneled in said cause (Section 5152 id.) the-defendant also filed in the office of the Clerk of said court a motion for a change of venue supported by. affidavit under the provisions of said Section 5147. The Prosecuting Attorney filed his affidavit traversing the affidavit of the defendant, and on the same day, to-wit: September 10, 1912, the defendant requested the court to call some other judge to hear and act upon the motion for a change of venue from the County of Weston. The bill of exceptions recites: “And thereupon, the said cause having already been delayed two days beyond the date set for the trial
And Be it Further Remembered:
That the said defendant by and through his counsel did their and there protest and object against a hearing by the aforesaid court with the Hon. C. H. Parmelee, Judge, presiding, of the defendant’s motion for a change of venue from Weston County, which said objection and protest were then and there overruled by the court, and the defendant by his counsel then and there excepted . Whereupon the said defendant by Enterline & LaFleiche, his attorneys, and the defendants Toni Aspoli by H. P. Ilsley, his attorney, and Paul Monette by his attorney, A. H. Beach, appeared and jointly entered into the stipulation in regard to the testimony to be taken upon said motion for a change of venue from the County as set forth herein.” The court, Judge P’ar-inelee presiding, having heard the testimony in support of and against the motion took the same under advisement and on September 11, 1912, entered its order overruling said motion, and on September 14th following, entered its order calling in Judge Craig of the Third Judicial District to further hear and try the case.
The question here presented is, was Judge Parmelee the regularly elected and presiding judge of the Fourth Judicial District after the filing of the affidavit alleging bias and prejudice of the judge and asking that one of the other
“§5147. The defendant in a criminal action may make an affidavit stating that he believes he cannot receive a fair trial owing to the bias or prejudice of the judge or the excitement or prejudice against him in the County; the Prosecuting Attorney may thereupon traverse by his affidavit the allegations of defendant, except those concerning the bias or prejudice of the judge, and the court or judge shall thereupon set down the issue so presented for trial before him at a stated time, at which time both parties shall present their witnesses, who shall be examined under oath orally, and if it appears to the court or judge, upon such hearing, that the trial would be more impartial in another county, the application shall be granted.”
In order to construe this section upon the facts here presented it becomes necessary to consider Section 5148 as to the effect of an objection to the judge by affidavit. That section is as follows:
“§5148. When the objection in a criminal action is to the judge, he shall call in one of the other District' Judges of the State to try said action, who shall try or continue the cause as if it had been originally brought before him.”
The purpose of the statute is to give the defendant the right to a fair trial before a'judge and jury who are neither biased nor prejudiced. The ruling upon a motion for a change of venue when contested involves the weighing of evidence and the exercise of a legal discretion and under the statute the filing of the affidavit for a change of judge alone disqualifies the judge against whom such affidavit is directed from presiding at the trial by reason of an indisputable presumption of bias or prejudice arising from the making and filing of such affidavit. To permit a judge against whom objection has been properly made to preside at the hearing and determine a disputed motion for a change
Judge Parmelee in assuming to preside during the hearing upon the motion for a change of venue after being disqualified by reason of the affidavit directed to him necessarily construed the statute in question. His ruling upon that question was stare decisis in that court and res adjudicata in the case until reversed. There was then nothing for the defendant to waive and the 'announcement by him thereafter and within a month of the time of the ruling on the motion for change of venue that he was ready for trial at the time the case was called by the court (Judge-Craig presiding) Was not an express waiver of errors which had theretofore occurred and to which exception had been duly taken. In Jones v. C. N. W. R. Co., 36 Iowa, 68, it was held where a motion for a change of venue was improperly overruled,
The defendant requested and the court refused to instruct the jury that greater care should be used by the jury in relation to the testimony of persons employed to find evidence against the accused than in other cases, because of the natural and unavoidable tendency and bias of such person to construe everything as evidence against the accused and disregard everything which does not tend to support their preconceived opinions of the matter in which they were engaged. The last part of this instruction was bad, for it is argumentative. We have grave doubts as to the propriety of the first part of the instruction, as it is a comment on the weight of the evidence. The instruction was directed to the evidence of two witnesses for the State who were compensated at the rate of eight dollars per day to secrete themselves in the jail where they could overhear any and all conversation between the defendant and two others who were jointly charged with the same homicide. The court after refusing to give the instruction so requested gave on its own motion instruction number one in part as follows: * * * * “You are at liberty and ought to treat such testimony in the light of testimony given by interested witnesses, and give their testimony closer scrutiny before accepting its truth than if they were wholly disinterested witnesses. * * * * * .” Assuming that this instruction was one proper to give on the facts of the case, and of which we have heretofore expressed our doubts, we think the latter part of the instruction was clearly erroneous and prejudicial. That part of the instruction is as follows, viz:- “Yet you ought not as jurors disbelieve such witnesses solely and only for the reason that they were employed to obtain testimony for the prosecution, but you should give their testi
Other errors are assigned upon the court’s refusal to give instructions at the request of the defendant and in giving some of the instructions over his objection. It is also contended that the evidence is insufficient to support the verdict and that the court erred in some of its rulings on the admissibility of evidence. We do not, in view of the fact that the case must be reversed and sent back for a new trial, deem it proper to discuss the evidence nor is it necessary to discuss any of the questions other than as hereinbefore referred to. The judgment will be reversed.
Reversed.