255 F. 5 | 9th Cir. | 1919
(after stating the facts as above).
The defendant in error contends that the filing of an affidavit in the district of Alaska, alleging prejudice or bias of a judge of the district, of itself constitutes contempt of court, and cites In re Jones, 103 Cal. 397, 37 P. 385, and Johnson v. State, 87 Ark. 45, 112 S.W. 143, 18 L.R.A.(N.S.) 619, 15 Ann.Cas. 531, in which it was held that an affidavit filed for the purpose of disqualifying a judge on account of alleged prejudice or bias, or for the purpose of changing venue, is contempt of court, in the absence of a statute rendering such prejudice or bias ground for such a motion. Upon principle, and upon a careful consideration of the few adjudicated cases concerning the question, we think that the' reasonable view is as it is expressed in 6 R.C.L. 494: “An attorney may in a proper case, in a respectful manner, as, for example, on an application for change of venue, allege that the judge is prejudiced against his client, and unless the act is done with reckless disregard of truth, or with the express in- ■ tention to reflect upon the honor and integrity of the judge, it is not a contempt.”
There is no statute of Alaska authorizing change of venue on the ground of the prejudice or bias of a judge. On March 3, 1911 (Judicial Code [36 Stat. 1090, c. 231]
We think the true rule is stated in Le Hane v. State, 48 Neb. 105, 66 N.W. 1017, where, notwithstanding, as the court said, there was no express provision of the law of Nebraska whereby a judge was disqualified from sitting in a case because of bias or prejudice with regard to one of the parties, it was held that it is the right of a party and of his counsel to apply to the judge before whom a case is pending for the purpose of having another judge try the case because of prejudice of the first judge which would prevent an impartial trial, and that the presenting of such an application in respectful language and in a respectful manner is not of itself contempt of court. In the present case it is not alleged or shown that there was anything improper or disrespectful in the manner in which the application was made.
It remains to be considered whether the circumstances attending the filing of the affidavit and the evidence adduced as to the intention of the accused are such as to justify the judgment. There was no formal charge of contempt. The charge recited in the order to show cause is that the motion and affidavit contain defamatory and scandalous matter, reflecting upon the integrity and judicial fitness and fairness of the judge, and that it was intended to intimidate the judge of .the court, and was calculated
This is a case of criminal contempt, and in such a case it is the rule that the trial court must be convinced
The judgment is reversed.