34 N.W.2d 80 | N.D. | 1948
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *127 The Attorney General of North Dakota has applied to this court for a supervisory writ to review the action of the Honorable Harold P. Thomson, one of the judges of the Second Judicial District in this state, in presiding as trial judge in a certain criminal action in the District Court of Walsh County against one Leonard Maresch, and in pronouncing sentence and rendering judgment in said criminal action.
The said Leonard Maresch was charged with the commission of the crime of murder in the first degree and was held to answer in the District Court of Walsh County. The Honorable C.W. Buttz, one of the judges of the Second Judicial District, was the presiding judge at the term of the District Court at which the action was about to be tried. On March 26, 1945, the said Leonard Maresch filed what is commonly known as an affidavit of prejudice against said Judge Buttz under the provisions of NDRC 1943, Section 29-1519. Thereafter, such proceedings were had pursuant to law that on March 27, 1945, an order was entered by the Supreme Court of North Dakota appointing and designating the Honorable P.G. Swenson, one of the judges of the First Judicial District, as presiding judge in said criminal action. The action came on for trial in April 1945 before a jury and resulted in a verdict finding the defendant guilty of murder in the first degree. The defendant appealed from the judgment of conviction and the Supreme Court reversed the judgment of conviction for errors occurring at the trial and remanded the case for a new trial. State v. Maresch,
Judge Hutchinson entered upon the discharge of his duties as presiding judge in said criminal action. In the afternoon of July 8, 1947, he presided at a session of the District Court of Walsh County held in the Court Rooms of said Court in the Court House in Walsh County. At such session he called the case of the State of North Dakota against Leonard Maresch. The Hon. Nels G. Johnson, Attorney General of the State of North Dakota, and Wallace E. Warner, State's Attorney of Walsh County, were present in court and appeared as attorneys for the State of North Dakota and the defendant, Leonard Maresch, was present in person and represented by his attorney, Wm. T. DePuy. Defendant's attorney DePuy made certain preliminary motions, among others, one that provision be made for the appointment by the Court of additional counsel for the defendant, Leonard Maresch, the compensation of such counsel to be paid by the county; and another, that certain witnesses for the defendant be subpoenaed from without the state and that the expense incident to the appearance of such witnesses be paid by the county. Judge Hutchinson ruled upon and decided such motions. Thereupon during such session of the court, consideration was given to the time when the said criminal case should be brought on for trial. Counsel for both parties participated in such discussion and were heard with respect thereto, and thereupon the said Judge Hutchinson, as presiding judge, ordered that the trial of said cause be continued until July 29, 1947. At the hour appointed for reconvening court on July 29, 1947, the court was opened pursuant to adjournment with the Hon. W.H. Hutchinson, judge, presiding. The state appeared by Wallace E. Warner, State's Attorney for Walsh County, and the defendant appeared in person and by his attorney, Wm. T. DePuy. At that time it was agreed by the parties and their attorneys and by the court that the case be set for trial on November 4, 1947, at 10 o'clock in the *133 forenoon of that day; and the said W.H. Hutchinson as presiding judge thereupon directed the entry of an order that the court be adjourned to reconvene on November 4, 1947, at 10 o'clock A.M. and that said criminal case come on for trial at that time. On October 4, 1947, the said Judge Hutchinson made an order summoning a petit jury and that 100 qualified persons be summoned as jurors to report at the Court Rooms of said court in the Court House in Walsh County on November 4, 1947, at 10 o'clock A.M. of that day.
On October 31, 1947, certain proceedings were had in the District Court of Walsh County, in the case of the State of North Dakota v. Leonard Maresch before the Hon. Harold P. Thomson, one of the judges of the Second Judicial District, presiding. At that time Leonard Maresch the defendant in said criminal action appeared in court with his attorney, Wm. T. DePuy, and the Hon. Wallace E. Warner, the State's Attorney of Walsh County, appeared as attorney for the prosecution. Defendant's counsel then said: "If it please the Court, the defendant has been informed against with the crime of Murder in the First Degree, a plea of not guilty has been entered. As the Court knows there has been a trial, a conviction and a reversal with a new trial set to commence next Tuesday. The defendant is here and here and now he offers to enter a plea of guilty to the offense of Manslaughter in the Second Degree, which I apprehend is included in the Information on file in and with this Court. I presume in order to accept a plea of that sort to that offense it would be necessary for the State to recommend to the Court that such plea be accepted." Following this the State's Attorney, Warner, said: "Let me say at the outset for the sake of the record that the Attorney General of the State of North Dakota, Honorable Nels G. Johnson, is opposed personally to the allowance of this plea and that by my taking this plea I am taking it upon my own responsibility and against the recommendations and the opinion of the Attorney General of the State of North Dakota. However, your Honor, I as State's Attorney feel accepting it on behalf of the State in the case that it is advisable, that it is expedient to take *134 this plea . . .". (The State's Attorney then states certain reasons for his belief that the plea should be accepted.) Judge Thomson thereupon stated: "Mr. Maresch, will you please stand up. Is it your desire that you be permitted to enter a plea of guilty to the charge of Manslaughter in the Second Degree in this case now pending against you here in Walsh County?" The defendant answered the question in the affirmative. Thereafter, the said Leonard Maresch, as defendant in said criminal action, entered a plea of guilty to the crime of Manslaughter in the Second Degree. Judge Thomson thereupon pronounced sentence, and judgment of conviction was rendered and entered, that the said Leonard Maresch be committed to the State's Penitentiary for a term of five years.
It is shown that the State's Attorney of Walsh County requested the Attorney General to assist in the prosecution of the criminal action against Maresch, and that in compliance with such request the Attorney General in performance of his official duties (NDRC 1943, Sec. 54-1201, 1, 5), took an active part in the prosecution of the action from the very beginning. He took part in the trial of the action in the District Court. He participated in the proceedings had after such trial and on the appeal to the Supreme Court he filed a brief and argued the case orally before the court. He continued to take an active part in the proceedings had following the remand of the case and he had arranged to be present at and participate in the retrial of the case. The Attorney General was not present and did not participate in the proceedings had before Judge Thomson on October 31, 1947. After being informed of such proceedings he applied to this Court for a supervisory writ to review the action of the said Judge Thomson in presiding as judge of the District Court at the proceedings then had in the case of State of North Dakota against Leonard Maresch and in pronouncing sentence and rendering judgment in said case. The Attorney General contends that such action by Judge Thomson was unauthorized and is null and void; that the only judge authorized and qualified to perform any judicial act in said case was the judge appointed and designated by the order of the Supreme Court, *135 namely the Honorable W.H. Hutchinson and that he and he alone had authority to act as judge in said action.
Logically, the first question which presents itself for consideration and determination is, what is the scope and effect of an appointment and designation by the Supreme Court of a substitute judge in an action in which an affidavit of prejudice has been filed against the presiding judge? The answer to the question involves a construction of the laws providing for such appointment and designation.
The laws of this state have always provided that one accused of crime may disqualify a judge of the District Court from acting in a criminal case by such accused filing an affidavit that he can not have an impartial trial by reason of the bias or prejudice of the presiding judge in the District Court where the action is pending and is about to be tried. Indeed such provision was made in the first code enacted by the Legislative Assembly of the Territory of Dakota. See Section 285, Code of Criminal Procedure, Revised Codes Dakota, 1877. This section remained in force as enacted and became a part of the laws of the State of North Dakota upon the establishment of the state government. North Dakota Constitution, Schedule, Section 2; Compiled Laws of Dakota 1887, Section 7312. C.L. 1913, Section 10766. Under such statutory provisions the right to a change of judges was absolute upon the timely filing of the statutory affidavit. State v. Kent,
"29-1513. Prejudice or Bias of Judge; Affidavit; Filing. When either party to a criminal action pending in any of the district courts of this state shall file an affidavit stating that he has reason to believe and does believe that he cannot have a fair and impartial trial or hearing before the judge presiding at the term of court at which such action is to be tried, by reason of the bias and prejudice of such judge, the judge shall proceed no further in the action and thereupon shall be disqualified to do any further act in the cause. Such affidavit may be made by the defendant or by his attorney on his behalf, and it may be made on behalf of the state by the attorney for the state. Such affidavit must be filed at least five days before the opening of the term if the information has been filed. If the information is filed in term time, the affidavit may be filed at any time before trial.
"29-1514. Affidavit of Prejudice to be Filed. An affidavit of prejudice with two copies thereof shall be filed with the clerk of the court in which the action is pending. Upon the filing of such affidavit, the clerk shall give notice immediately to the judge who is disqualified by delivering to him a copy of such affidavit. Another copy thereof shall be forwarded promptly to the clerk of the supreme court.
"29-1515. The Supreme Court to Designate Trial Judge. Upon receipt of an affidavit of prejudice from the clerk of the district court of any county in this state, the supreme court shall designate a district judge to act in the place and stead of the judge disqualified.
"29-1516. Judge Designated to Conduct Trial Forthwith; Noticeto Parties. Any judge of the district court designated by the supreme court to act in a cause to which he has been assigned, as soon as possible after receiving such notice from the supreme court and during the same term unless agreement to the contrary is made by the parties, shall proceed with the trial *137 of said cause, first giving to the parties or their attorneys reasonable notice of the date of trial.
"29-1517. Expenses of Judge Designated. The actual expenses of a judge designated to try a cause in which an affidavit of prejudice has been filed, upon furnishing a voucher therefor to the state auditor, shall be approved for payment and paid by the state treasurer out of the general fund.
"29-1518. Jurors Not to be Excused by Disqualified Judge. After an affidavit of prejudice has been filed with the clerk of the district court, no juror shall be excused except by the judge designated for good cause shown."
It will be noted that the legislative enactment of 1921 made a complete change in the method of selecting and designating a substitute judge to act in the place of a district judge against whom an affidavit of prejudice has been filed. Under the law as it existed prior to such enactment the jurisdiction of the proceeding for such selection and designation was vested in the district court and the judge against whom the affidavit of prejudice had been filed was authorized and required to make such designation. This method was wholly abrogated by the 1921 legislative enactment. By this enactment the legislature not only deprived the judge against whom an affidavit of prejudice had been filed of authority to make such selection and designation but it withdrew from the district court and the judges thereof the right to make such selection and designation and imposed the duty upon the supreme court under its constitutional power of "general superintending control over all inferior courts", (ND Constitution, Section 86), to select and designate a substitute judge to act in the place and stead of a judge who had become disqualified by reason of the affidavit of prejudice. State v. First State Bank,
Under the statute the disqualification of the judge is accomplished when an affidavit of prejudice is timely filed. State v. Kent, supra; State ex rel. Mattoon School District v. Circuit Court,
The object sought to be accomplished by the designation of a substitute judge is to provide a judge with all the powers and charged with all the duties and responsibilities of the regular judge, and the statute evidences an intention that the substitute judge shall be endowed with such powers and charged with such duties and responsibilities. There is no provision in the statute indicating that the appointment of a substitute judge and the powers conferred upon him shall be restricted to certain acts. The statute provides "the Supreme Court shall designate a district judge to act in the place and stead of the judge disqualified." Section 29-1515, supra. There is no provision in the statute indicating that the appointment is limited in time other than the final disposition of the case in the court in which the judge has been designated to act. The statute specifically recognizes that if the case is not tried during the term at which it appeared for trial at the time the affidavit was filed the judge designated continues as judge and may try it at a subsequent term. NDRC 1943, Section 29-1516. The appointment and designation is not a general one and does not extend to matters or causes other than the one in which the designation is made. See 48 CJS, p 1127.
The authority of the judge who has been designated to act in a particular case in the place and stead of a disqualified judge is limited to the particular case for which he has been designated; it does not extend to other cases pending in the court in which the particular case is pending. 48 CJS, pp 1123, 1127; 17 A E Ency L, 2d ed, p 749. But in the particular *139
case for which the substitute judge has been designated he becomes the judge of the court for all purposes until the case has been finally disposed of in that court or his designation has been rescinded. 48 CJS supra; 17 A E Ency L, 2d ed, p 749; State ex rel. Kister v. De Voss,
When the case has been finally disposed of in the court in which the substitute judge has been designated to act, either by final decision or by transfer of the case to another court, the duties of the substitute judge have been discharged and his authority under the order of designation are terminated. State v. Garrison,
It is contended that the designation by the Supreme Court confers authority upon the judge designated only to act as presiding judge upon the trial of the particular action in which the designation is made, and that such designation vests exclusive authority in the substitute judge only in matters incident to or growing out of the trial, and it is argued that the designation does not vest in such substitute judge exclusive authority to act as judge where a plea of guilty is interposed.
It is said that when a plea of guilty is interposed there is no trial of any issues and the designation does not vest the substitute judge with exclusive authority to act, and that any *140 regular judge of the court may accept the plea and pronounce sentence and judgment.
In our opinion this contention is not well founded and does not accord with the legislative intention and purpose as evidenced by the statute. We think the statute clearly evidences an intention that the judge designated by the Supreme Court shall have all the powers and be charged with all the duties and responsibilities of judge in the particular case. The statute does not evidence any intention to restrict or to limit the powers of such judge to certain features of the case. The judge is given full and complete authority as judge in the particular case in which he is designated to act. In every pending criminal action there is a possibility there may be a plea of guilty either to the offense charged or to some included offense. The plea of guilty does not dispense with judicial action. On the contrary, such plea invokes and requires action by the judge.
When a judge is selected and designated to act as judge in a criminal action in the place and stead of a judge who is disqualified, the designation is made for all purposes and the authority vested extends to the disposition of all questions that may arise requiring action by the judge. The withdrawal of a plea of guilty and the entry of a plea of guilty are among the possible or even probable incidents that may occur. When a judge is designated by the order of the Supreme Court to act as judge in a criminal action in which an affidavit of prejudice has been filed, the case in which such judge is designated is in effect set aside from other cases pending in that court and the case is specifically assigned to the judge designated for disposition and he alone is properly authorized to act as judge or to perform any judicial act in the case while the order is in effect and any judicial action by a judge other than the one so designated is erroneous. State v. Towndrow, supra; Collier v. State, supra; see also State ex rel. Kister v. De Voss, supra; State v. Donnelly, supra; Dotson v. Burchett, supra; Kane v. Ferguson, supra.
State v. Towndrow, supra, involved the question of the scope and effect of an order designating a judge of a district court *141 to act as judge in a particular case in the place and stead of the regular presiding judge in another judicial district. The Constitution of New Mexico, (Article 6, Section 15), provides:
"Whenever the public business may require the Chief Justice of the Supreme Court shall designate any district judge of the state to hold court in any district, and two or more district judges may sit in any district or county separately at the same time."
In construing and applying this provision the Supreme Court of New Mexico held:
"Under this provision of the Constitution, where the Chief Justice of this court has designated a district judge other than the regular presiding judge of any given district to preside over the trial of any given cause, his jurisdiction of said cause is exclusive, and continues until the cause is disposed of or until his designation is rescinded." (Syllabus, 25 N Mexico 203, 180 Pac 282).
In general the holding of the Supreme Court of New Mexico seems pertinent here. The designation in State v. Towndrow was made by the Chief Justice of the Supreme Court pursuant to the authority and duty imposed upon him by the Constitution. The order designating Judge Hutchinson in State v. Maresch was made by the Supreme Court, in the exercise of its constitutional power of superintending control over inferior courts, pursuant to the provisions of the statute requiring the Supreme Court in the proper case to make such order.
We are agreed that Judge Hutchinson was vested with the exclusive authority to act as judge and to discharge any and all judicial acts in the case and that Judge Thomson erred in acting in the case and in pronouncing sentence and judgment.
The question, therefore, presents itself whether the acts of Judge Thomson were merely erroneous and voidable or were wholly void.
At common law judicial acts of a disqualified judge are generally held to be merely erroneous and voidable, but not void. 48 CJS p 1109; 30 Am Jur p 802, Sec. 97; 17 A E Ency L, 2d ed, pp 742, 743. Where the disqualification of a judge is the *142 creature of a constitutional or statutory provision the answer to the question whether the act of a disqualified judge is void or voidable depends upon the language of the applicable constitutional and statutory provisions and the nature of the disqualification thereunder. 48 CJS p 1109; 30 Am Jur p 802, Sec 97; 17 A E Ency L, 2d ed, pp 742, 743.
American Jurisprudence says:
"According to the weight of authority, at common law, the acts of a disqualified judge are not mere nullities; they are simply erroneous and liable to be avoided or reversed on proper application, but cannot be impeached collaterally, except in the case of those inferior tribunals from which no appeal or writ of error lies. This is also the general rule under statutes, in the absence of any express provision to the contrary or expressly prohibiting the judge from sitting, especially where the disqualification is regarded as a matter of personal privilege merely." 30 Am Jur p 802, Sec 97.
Corpus Juris Secundum says:
"While the judicial act of a disqualified judge is an error subject to vacation or reversal, it has generally been held that at common law such act is merely voidable but not void, and that such an error does not affect the judge's jurisdiction or render his acts subject to collateral attack. Since, however, the disqualifications of judges are mostly the creatures of statute, whether the act of a disqualified judge under the provision declaring him disqualified is void or voidable depends on the language of the statute or the nature of the disqualification thereunder; some statutes are considered merely as declaratory of the common law. If the right to object to a disqualified judge is a personal privilege of the litigant, or his disqualification may be waived, it has generally been held that his act is voidable but not void, and that it is not subject to collateral attack. . . .
"On the other hand, if the disqualification is of a nature that cannot be waived, or is considered as founded in public policy, the act of a disqualified judge is absolutely void, and this is also true where the constitution or statute creating the *143 disqualification by mandatory provision prohibits the judge from acting. If the act is considered void it is subject to collateral attack; and it is void notwithstanding an attempt to waive the disqualification or to confer jurisdiction by consent." 48 CJS pp 1109-1110, Section 97.
This is not a case where it is claimed that the person who has acted as judge was wholly disqualified from acting as judge of the court at all, and that consequently there was no judge, and no court at all. There is no question here but that the District Court of Walsh County with Judge Thomson as presiding judge was a legal court authorized to act in all matters within the jurisdiction of the court; nor is there any question about the authority of Judge Thomson to preside and act as judge of such court except in any particular case in which he might be disqualified.
Judge Thomson was a duly elected and qualified judge of the District Court of the Second Judicial District and hence one of the regular judges of the District Court of Walsh County and he had authority to act as judge of that court in all cases except in cases in which he might be disqualified. The disqualification of Judge Thomson in the case of the State of North Dakota v. Leonard Maresch arose alone from the fact that Judge Hutchinson had been designated to act as judge in that particular case by an order of the Supreme Court entered pursuant to law. There were no other grounds of disqualification. He was not disqualified because of any interest in the action, or relationship to the parties, or because of any charge of bias or prejudice made against him by either of the parties in the action. There are no constitutional or statutory provisions expressly prohibiting Judge Thomson from acting in the case. The disqualification arose only because Judge Hutchinson had been selected and designated to act as judge in the case and as a consequence other judges were by necessary implication unauthorized to act in the case. Aside from the disqualification of Judge Thomson, the proceedings had were in all respects regular. At the time such proceedings were had the District Court of Walsh County was open and had authority to receive a plea of guilty in a criminal action and to pronounce sentence and judgment therein. State *144
v. Pedie,
The defendant was present and represented by his attorney, and the State was represented "by its regularly authorized officer," the State's Attorney of Walsh County, (Schideler v. Indiana,
While the proceedings had before Judge Thomson were erroneous, they were doubtless had in the belief that they were regular and proper. We are satisfied there was no intention to disregard or circumvent the order of this court or to do any act that was not entirely conformable to the law. We are also satisfied that in instituting the proceeding in this court to review the actions then had the Attorney General was actuated only by a compelling sense of duty. He had come to the conclusion that the proceedings had before Judge Thomson were erroneous and probably void and he further believed that the plea of guilty to second degree manslaughter should not have been accepted. In short, we are satisfied that the actions had in the District Court of Walsh County which gave rise to the controversy and to the subsequent proceedings had in this court for the review of the validity of such proceedings were in no sense and at no time actuated by other than proper motives, but were the result of honest differences of opinion on the part of men who had no *145 purpose other than to faithfully discharge their respective official duties.
We are agreed that the order designating Judge Hutchinson to act as judge in the case of the State of North Dakota v. Leonard Maresch conferred upon him exclusive authority to act as judge in such case and that, therefore, Judge Thomson was disqualified to act as judge; but we are also agreed that his actions were not void but were merely erroneous and voidable and that the judgment of conviction rendered by him is not subject to collateral attack (17 A E Ency L p 743; 48 CJS p 1109), and is not reviewable except upon consent of the defendant. 1 Bishop Crim Law, 9th Ed p 758, Sec 1026; State of N.J. v. Hart,
The fact that the proceedings had before Judge Thomson were erroneous and that the judgment rendered was voidable does not destroy its effectiveness as a bar to further prosecution. 15 Am Jur, p 51; 22 CJS, pp 378, 382, 383, 402, 403. Such judgment "will stand against everything done for its reversal without the defendant's consent." 1 Bishop Crim Law, 9th Ed, p 758, Sec 1026. See also, State v. Hart,
The order heretofore issued will be quashed and the proceeding for a supervisory writ dismissed. It is so ordered.
BURKE, J., and GRONNA, Dist. J., concur.
MORRIS and BURR, JJ., not participating.
Dissenting Opinion
The history of the proceedings in this case is set out in the majority opinion in detail. I would add, however, that there are three judges in the Second Judicial District. When the affidavit of prejudice was filed against Judge Buttz, before whom the cause came on for trial in the first instance, the two other judges having expressed disqualifications to try the case, the Supreme Court designated Judge Swenson. After the judgment of conviction on the trial before Judge Swenson was reversed, the Supreme Court designated Judge Hutchinson in his place and stead as stated. In the meantime, however, one of the judges of the Second Judicial District, who had expressed disqualification, was succeeded in office by Judge Thomson who was not disqualified.
I am wholly in accord with what is said in the majority opinion except with respect to whether the acts of Judge Thomson were merely erroneous and voidable or were wholly void. But with the conclusion reached on this point I cannot agree.
Section 86 of the Constitution provides that:
"The Supreme Court . . . shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law."
The statutes, Section 29-1513, et seq., NDRC 1943, among other things, provide that upon receipt of an affidavit of prejudice the Supreme Court shall designate a district judge to act in the place and stead of the judge disqualified. It seems to me that on the facts disclosed, when Judge Hutchinson was appointed, Judge Thomson was wholly without authority to *147 receive the plea interposed by the defendant or to take any other action in the case.
In other words Judge Thomson having no authority to act, (and the majority opinion concedes this), the consent of the defendant could not confer it upon him, and, therefore, all proceedings had before him were void. The statute under which the Supreme Court acted provides that it shall designate a trial judge to act in the place and stead of the judge disqualified. I cannot come to any other conclusion than that under this statute the judge then designated pursuant to it and the constitutional provision above quoted was designated for all purposes having to do with the case in question and though the statute does not say so expressly, its clear implication is that no other judge shall have any power and authority with respect to the case. And to hold otherwise is to emasculate the statute, thwart the legislative purpose and intent behind it, and make it possible to circumvent the exercise of the power of superintending control reposed in the Supreme Court and exercised pursuant to the statute. It is to be noted in this connection that after an affidavit of prejudice has been filed the statute further provides that no juror shall be excused except by the judge designated. See Section 29-1518. The construction I hold should be given this statute is in line with a public policy that aims at an orderly and consistent procedure in the trial and disposition of criminal causes.
Accordingly, I dissent.
Addendum
The plaintiff has petitioned for a rehearing. The petition is largely a reargument of the questions considered and determined in the former opinion. It is earnestly and vigorously contended that the actions of Judge Thomson were void and that the judgment and sentence pronounced by him as judge of the District Court of Walsh County were nullities, and that this Court erred in not so holding.
The first ground is stated in the petition as follows:
"The Supreme Court in the opinion rendered on January 22, 1948, correctly finds: *148
"That the district court of Walsh County presided over by the Honorable Harold P. Thomson, at Grafton, North Dakota, on the 31st day of October, 1947, had no jurisdiction to hear or deterimne the issues between the State of North Dakota, plaintiff, and Leonard Maresch, defendant, and yet, it also finds that, once the Honorable Harold P. Thomson took jurisdiction, erroneously and without authority of law, the fact of the sentencing of Leonard Maresch for the crime of second-degree manslaughter cannot be undone nor can anyone question that act except the defendant himself."
The ground thus asserted is predicated upon an erroneous premise. This Court did not hold "that the district court of Walsh County presided over by the Honorable Harold P. Thomson, at Grafton, North Dakota, on the 31st day of October, 1947, had no jurisdiction to hear or determine the issues between the State of North Dakota, plaintiff, and Leonard Maresch, defendant." On the contrary in the former opinion we held that though the acts of Judge Thomson "in accepting the plea of guilty and pronouncing sentence and judgment upon the defendant," Leonard Maresch, were erroneous and the judgment of conviction voidable, that such action and judgment were not void, and "may not be attacked collaterally and are not reviewable except at the instance or upon consent of the defendant." It is true, as stated in the petition for rehearing, that we said in the former opinion: —
"When a judge is designated by the order of the Supreme Court to act as judge in a criminal action in which an affidavit of prejudice has been filed, the case in which such judge is designated is in effect set aside from other cases pending in that court and the case is specifically assigned to the judge designated for disposition and he alone is properly authorized to act as judge or to perform any judicial act in the case while the order is in effect and any judicial action by a judge other than the one so designated is erroneous."
The words "authorize" and "authorized" have different meanings dependent upon the connection and circumstances of their use. The word "authorize" may mean to invest with legal power *149
to act, or it may mean to permit, to afford just ground for, to justify, to give warrant for. See, Funk and Wagnall's New International Dictionary of the English Language and Webster's New International Dictionary, Second Edition; 7 CJS pp 1292-1293. As applied to the action of a judge or a court the words "authorize" and "authorized" may mean the legal power or jurisdiction conferred by law upon the judge or court, or they may have reference to the duty of the judge or court in the exercise of power or jurisdiction. See, Fauntleroy v. Lum,
"In its decision refusing the writ applied for by Eckart, the supreme court of Wisconsin held that while the conviction under the sentence in question was erroneous, the error in passing sentence was not a jurisdictional defect and the judgment was therefore not void. In this view we concur. The court had jurisdiction of the offense charged and of the person of the accused. The verdict clearly did not acquit him of the crime with which he was charged, but found that he had committed an offense embraced within the accusation upon which he was tried. It was within the jurisdiction of the trial judge to pass upon the sufficiency of the verdict and to construe its legal meaning, and if in so doing he erred, and held the verdict to be sufficiently certain to authorize the imposition of punishment for the highest grade of the offense charged, it was an error committed in the exercise of jurisdiction, and one which does not present a jurisdictional defect, remediable by the writ of habeas corpus. . . .
"The case of Ex parte Bigelow determined that the action of a trial court in overruling a plea of former jeopardy could not be reviewed on habeas corpus. In the course of the opinion, the court said (p. 330 (1006)):
"`The trial court had jurisdiction of the offense described in *151
the indictment on which the prisoner was tried. It had jurisdiction of the prisoner, who was properly brought before the court. It had jurisdiction to hear and to decide upon the defenses offered by him. The matter now presented was one of those defenses. Whether it was a sufficient defense was a matter of law on which that court must pass so far as it was purely a question of law, and on which the jury, under the instructions of the court, must pass, if we can suppose any of the facts were such as required submission to the jury. If the question had been one of former acquittal, a much stronger case than this, the court would have had jurisdiction to decide upon the record whether there had been a former acquittal for the same offense, and if the identity of the offense were in dispute it might be necessary, on such a plea, to submit that question to the jury on the issue raised by the plea. The same principle would apply to a plea of a former conviction. Clearly, in these cases the court not only has jurisdiction to try and decide the question raised, but it is its imperative duty to do so. If the court makes a mistake on such trial it is error which may be corrected by the usual modes of correcting such errors, but that the court had jurisdiction to decide upon the matter raised by the plea, both as matter of law and of fact, cannot be doubted. . . . It may be confessed that it is not always very easy to determine what matters go to the jurisdiction of a court so as to make its action, when erroneous, a nullity. But the general rule is that when the court has jurisdiction by law of the offense charged, and of the party who is so charged, its judgments are not nullities.'" Re Eckart,
It is by no means true that every unauthorized action of a court, — even action which the law says shall not be taken, — affects the jurisdiction of the court and renders the action void. If the unauthorized action is one not within the court's jurisdiction, — i.e. if the court has no power to inquire into the facts, to apply the law, and render decision, — then the action is void; but if the erroneous and unauthorized action of the court is one in the exercise of the court's power, then the action is not void, but is merely erroneous and voidable. *152
"Any error of law committed by the trial court (in the exercise of its jurisdiction) though serious and fundamental to rights of parties, is not the equivalent either of excess or want of jurisdiction." Rock Springs Coal Mining Company v. Black Diamond Coal Co.,
"If court merely applies wrong rule of law to situation presented, it is not acting without jurisdiction, but in erroneous exercise of its jurisdiction." Artman, et al. v. Artman,
In Fauntleroy v. Lum,
"No doubt it sometimes may be difficult to decide whether certain words in a statute are directed to jurisdiction or to merits, but the distinction between the two is plain. One goes to the power, the other only to the duty, of the court. Under the common law it is the duty of a court of general jurisdiction not to enter a judgment upon a parol promise made without consideration; but it has power to do it, and, if it does, the judgment is unimpeachable, unless reversed. . . . Whether a given statute is intended simply to establish a rule of substantive law, and thus to define the duty of the court, or is meant to limit its power, is a question of construction and common sense. When it affects a court of general jurisdiction, and deals with a matter upon which that court must pass, we naturally are slow to read ambiguous words as meaning to leave the judgment open to dispute, or as intended to do more than to fix the rule by which the court should decide. *153
". . . The statute now before us seems to us only to lay down a rule of decision. The Mississippi court in which this action was brought is a court of general jurisdiction and would have to decide upon the validity of the bar, if the suit upon the award or upon the original cause of action had been brought there. The words `shall not be enforced by any court' are simply another, possibly less emphatic, way of saying that an action shall not be brought to enforce such contracts. As suggested by the counsel for the plaintiff in error, no one would say that the words of the Mississippi statute of frauds, `An action shall not be brought whereby to charge a defendant,' Code 1892, Sec 4225, go to the jurisdiction of the court. Of course it could be argued that logically they had that scope, but common sense would revolt. See
In Burnet v. Desmornes y Alvarez,
"Whether prescription goes only to the remedy or extinguishes the right, it affects the jurisdiction no more than any other defense. When a court has general jurisdiction to try the question whether an alleged right exists, the rules that determine the existence of the right ordinarily govern the duty only of the court, not its power. Its judgment that the right is established cannot be impeached collaterally by proof that the judgment was wrong. For instance, a common-law court ought not to give judgment for the plaintiff upon a parol promise without consideration, but if it does so the judgment is not open to collateral attack. Even words in a statute that might seem to affect the *154
power of the court, such as `no action shall be brought,' in the statute of frauds, are assumed without question merely to fix the law by which the court should decide, as is explained in Fauntleroy v. Lum,
The laws of this state provide that whenever a person prosecuted for murder pleads guilty he shall designate in his plea whether he is guilty of murder in the first degree or in the second degree. NDRC 1943, Sec 12-2722. Where an information is filed charging the defendant with murder in the first degree and the defendant enters a plea that he is "guilty as charged in the information" without specifying the degree, the trial court isnot authorized to pronounce judgment upon the defendant; and if the court pronounces judgment upon the defendant for murder in the first degree, such sentence and judgment are erroneous and invalid and subject to reversal when properly challenged in the appellate court. State v. Noah,
The laws of this state make it the duty of the trial court in all criminal actions to reduce all instructions to writing before they are read to the jury, unless "by consent of both parties entered in the minutes" it is agreed that oral instructions may be given, (NDRC 1943, Sec 21-30), and the trial court is notauthorized to give oral instructions in a criminal action without the consent of the defendant, and the giving of oral instructions without such consent constitutes reversible error. State v. Mitchell,
When a criminal action is tried to a jury it is the duty of *155
the trial court to decide all questions of law which may arise in course of the trial and to instruct the jury as to the law of the case, and it is for the jury to determine all questions of fact. NDRC 1943, Sections 29-2103 and 29-2104; State v. Young,
Thus, in this case, if upon the first trial the then presiding trial judge had advised the jury to return a verdict of not guilty and if the jury had returned such verdict in accordance with the court's advice, the action of the trial court and the verdict returned would not have been acts without or in excess of jurisdiction and hence void, but such verdict would have constituted a bar to further prosecution. Belter v. State, supra; State v. Dillard, supra; State v. Kelsey, supra.
It goes without saying that a trial court is never authorized to exclude competent evidence and deprive the defendant in a criminal action of a valid defense. Yet if the trial court commits an error of law and excludes such evidence and thereby deprives the defendant of his only real defense, the erroneous action of the trial court "did not go to the jurisdiction of the trial court" (
At the time the actions of Judge Thomson in question here were had, he was presiding as judge of the District Court of Walsh County which was then in session. He was a duly elected, qualified and acting judge of such court. The District Court of Walsh County had undoubted jurisdiction in criminal cases involving the crime of murder charged to have been committed within Walsh County. If the order of this court designating Judge Hutchinson had not been in existence, there could have been no doubt that all proceedings then had were in every respect regular and valid. In short, the only objection urged against the jurisdiction of the court as then constituted and the validity of such actions then had resulting in the pronouncement of sentence and judgment of conviction upon Leonard Maresch is that another judge, namely Judge Hutchinson, had been designated by order of this Court to try the case. There is no claim that Judge Thomson was disqualified on account of any relationship to parties or interest in the action, and it is admitted that no affidavit of prejudice had ever been filed against him. So, the only question is as to the effect of the order that had been made by this court designating Judge Hutchinson as judge to try the case.
In every case brought on for trial the presiding judge is confronted at the outset with and must inquire into and determine (1) whether for any reason he is disqualified to act as a judge in the case, (48 CJS p 1079, Sec 93; Jewel Ridge Coal Corporation v. Local No. 6167, United Mine Workers of America, etc.,
"The defendant, with the consent of the court and of the state's attorney, may plead guilty of any lesser offense than that charged which is included in the offense charged in the indictment or information, or of any lesser degree of the offense charged."
When the State's Attorney of Walsh County and the defendant and his counsel appeared in the District Court of Walsh County on October 31, 1947, and the defendant asked permission to withdraw his plea of not guilty and to enter a plea of guilty to manslaughter in the second degree and the State's Attorney consented that the defendant be permitted to plead to the lesser offense, it became necessary for Judge Thomson to take some action. He could not ignore the parties. He was confronted with the question whether he was qualified to act as judge in the case and whether the court over which he presided, as then constituted, had jurisdiction of the cause and could consider and determine the questions presented. It became incumbent upon Judge Thomson to determine the effect of the order that had been made by this Court designating Judge Hutchinson as trial judge. In making such determination he was required to construe the order and the statute pursuant to which it was made. Judge Thomson construed the order as conferring exclusive authority upon Judge Hutchinson only to act as judge on the "trial" of the case, that is, on a judicial examination of the issues *158
between the parties, and where the issues of fact were tried to a jury, (see State v. Hazledahl,
In the former opinion we cited State v. Towndrow,
In the opinion in the Towndrow case it is stated that the trial of the action was begun on October 12, 1916, and that on the 13th of October a temporary writ of prohibition and order to show cause was issued out of the Supreme Court prohibiting the judge who was conducting the trial from proceeding with the trial and ordering him to show cause why he should not be permanently restrained from so doing. That a hearing was had upon such writ and that "a majority of the court exercised its discretion to refuse the writ upon the ground that the jurisdictional question would be still available to the defendant in case of conviction and in view of the fact that the trial had already begun." That thereupon the trial was resumed and on October 22, 1916, a verdict of voluntary manslaughter was returned. That thereafter the defendant's motion for a new trial was overruled and the case brought to the Supreme Court on appeal. 25 NM at pp 204-205. It appears therefore that as a result of the decision of the Supreme Court on the application for a writ of prohibition the parties were required to, and did, proceed to obtain a review of the rulings which were challenged in the manner prescribed for the review of errors of law and apparently no attempt was made to attack the judgment collaterally, such *160 as by habeas corpus, on the ground that the judgment was a nullity.
The order designating the trial judge in State v. Towndrow was not made pursuant to the provisions of a statute or because an affidavit of prejudice had been filed against the presiding judge. The order was made under the authority of a provision of the Constitution of New Mexico (Article 6, Section 15) which provides:
"Whenever the public business may require, the Chief Justice of the Supreme Court shall designate any district judge of the state to hold court in any district, and two or more district judges may sit in any district or county separately at the same time."
New Mexico also has a statute providing for disqualification of a judge against whom an affidavit of prejudice has been filed. New Mexico Statutes 1941, Section 19-508. The statute provides that where a party to any action or proceeding, civil or criminal, "shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard cannot according to the belief of the party to said cause making such affidavit, preside over the same with impartiality, such judge shall proceed no further therein, but another judge shall be designated for the trial of such cause either by agreement of counsel representing the respective parties or upon the failure of such counsel to agree, then such facts shall be certified to the chief justice of the Supreme Court of the state of New Mexico, and said chief justice of the Supreme Court of the state of New Mexico, shall thereupon designate the judge of some other district to try such cause."
The Supreme Court of New Mexico has held that the disqualification of a judge is accomplished when the affidavit provided for in the statute is timely filed. State ex rel. Hannah, et al. v. Armijo,
In State ex rel. Lebeck v. Chavez,
"We have said a good deal upon the question of disqualifying a trial judge under the provisions of this act. The law may be said to be now well settled and generally understood. . . .
"There can be no question that this disqualification, as well as the constitutional disqualification relating to kinship, interest, etc. (Sec 18, Art 6, Const), though unlike the rule prevailing in many states, may be waived. We have heretofore held that this disqualifying language used in our constitution is not absolute and the parties may waive it. State v. Gonzales,
The question of waiver of disqualification resulting from the filing of an affidavit of prejudice against a judge arose and was considered again by the Supreme Court of New Mexico in State v. Garcia,
"On these facts defendant says the resident judge was disqualified to accept the plea of guilty and sentence him. In this he is in error. As a matter of fact, the defendant himself, by asking the judge to rule upon his motion for change of venue, lost the right to disqualify the judge under the statute mentioned. State ex rel. Weltmer v. Taylor,
We adhere to the former opinion. The petition for a rehearing is denied.
BURKE, J., and GRONNA, District J., concur. *163