19 Kan. 28 | Kan. | 1877
The opinion of the court was delivered by
The appellant was convicted of murder in the second degree, at the February term for 1876 of the district court of Saline county, and now appeals to this court. This is the second time the case has been brought here. (The State v. Bohan, 15 Kas. 407.)
In answer to the affidavits and testimony of the appellant, on the motion, the trial judge filed a statement, which contains among other things, the following: “I am quite sure I did not use the language imputed to me in the petition and affidavit of defendant, to-wit,‘ that he had committed a willful, deliberate and malicious murder.’ I discussed the testimony somewhat in pronouncing judgment, and said there was some that would tend to show deliberation' and premeditation, (quoting it,) and that this was the charge and the theory of the prosecution, and that the facts were such, as shown by the testimony, on these points, ‘that if the jury had returned a verdict of murder in the first degree I should not have disturbed it’—coming nearer to the language used in the affidavit of John G. Spivey. In deciding upon the question of bail, I did not discuss the case, or express or intimate any opinion on it in any way, either of my own, or as to what the testimony had shown. And in pronouncing judgment, I did not in any way express my own opinion on the case, but only discussed the testimony adduced on the trial. The affidavits do not show any statements or acts of mine out of court, but as far as facts are stated therein (eliminating conclusions of law, and fact, and opinions, which have but little weight,) they show only an expression or words
From the testimony we cannot say that the evidence shows any prejudice toward the appellant by the trial judge; much less can we say that prejudice dearly appears. The law provides, that “when the defendant appears for judgment he must be informed by the court of the verdict of the jury, and asked whether he has any legal cause to show why judgment should not be pronounced against him;” and in answer to the inquiry last stated, the defendant often replies that he is innocent, and has been wrongfully convicted. In answer, the trial judge frequently comments upon the trial, the manner the party has been defended, and the evidence introduced in the case, and frequently remarks very similar to those stated by the trial judge to have been spoken by him on the occasion of the first sentence’ of the appellant, are made use of. We are aware of no authorities which go to the extent that statements, thus made, amount to prejudice or ill-will. To thus hold in this case, would lead to absurd consequences. No authority is cited by counsel for appellant to sustain the proposition that these comments upon the evidence are sufficient to establish prejudice.
Neither can the adverse ruling of the trial judge, on the first trial, which was afterward corrected in this court, be held to authorize a change of venue. Errors of judgment, do not amount to prejudice or ill-will on the part of a judge. The theory of our judicial system is, that courts of nisi prius may commit errors of judgment in matter of law, which are to be reviewed by courts of last resort; but such errors have never been held equivalent to prejudice. Burk v. Mayall, 10 Minn. 287. Counsel for appellant contend however, that the cause for a change of venue, specified in section 173 of the criminal code (Gen. Stat. 847,) is properly presented in the manner required by section 177 of same code, and that accord
Having examined all the causes for which it is claimed that a new trial should be granted, and having found no error in them, the judgment is affirmed-