Ex parte Cornwell , 1905 Ala. LEXIS 43 ( 1905 )

DOWDELL, J.

The petitioner was indicted by the grand jury of the city court of Bessemer.for embezzlement at the September term, 1903-4, of said court. The case was pending for trial in that court. The offense charged was for embezzling a large sum of money, which was in the possession of the Bessemer Savings Bank, or deposited therein, while the petitioner was an officer of said bank. The respondent in the petition is the judge of the city court of Bessemer.

The petition and answer show that, at the time of the alleged offense, the respondent was a depositor of said bank to the amount of about twelve hundred dollars. “That the Bessemer Savings Bank, the corporation mentioned and set out in each of the indictments, * * * * failed on or about the 8th day of June, 1903, and a receiver ivas appointed by the city court of Birmingham, in a cause pending in said court, who took charge of the entire assets of the said bank, and who has since proceeded to wind up the affairs of said bank, as such receiver. That the said bank went out of business at the time of its failure aforesaid.”

The petitioner objected to being tried on said indictments by the respondent as judge of 'the city court, on the ground of inccmpetency by reason of interest of said judge as a depositor in said bank, and requested the judge to certify his’incompetency under the statute in order that a special judge might be select ed to try petitioner on said indictments. This the respondent declined and refused to do. The present petition is for a peremptory writ of mandamus to compel the respondent to certify his incompetency.

It- is true that the respondent has no direct, pecuniary interest in the result of the prosecution by the State against the petitioner on the pending indictments. And, if the question of disqualification were left to be determined alone by the terms of the statute, § 2637 of the Code, under the facts in the present case, no disqualification could be said to exist. But, under the common law, there are other grounds than those mentioned in the statute, which go to the disqualification of the judge.

In Gill v. State, 61 Ala. 172, it was said, “According to the stern morality of the common law, a judge is required to be legally indifferent between the panties.” In Freeman on Judgments, § 145, it is said to be “Well settled by the common law that no judge ought to act where, from interest or any other cause, he is supposed to be partial 'to one of the suitors.” Any interest, the probable and natural tendency of which is to create a bias in the mind of the judge for or against a party to the suit, is sufficient to disqualify. The judge is human, and human nature at best is weak, and as far as it is possible a perfect equipoise should always be preserved in the administration of justice by the courts. Pecuniary interest in the result of the suit is not the only disqualifying interest. If such were true, there would exist no disqualification in the judge to try a defendant on a charge of arson in the burning of the house of 'the judge. And yet no one would for a moment question the existence of such an interest in the result of the trial, the probable and natural tendency of which would be to create a bias, that would affect the competency of the judge.

In Medlin v. Taylor, 101 Ala. 239, in a contested election case where the judge before whom the contest was instituted declined to sit, because his right to office by the same general election was being contested, but in a different forum, it was said by this court, speaking through the present Chief Justice, then Justice, “Judge Taylor not only had no pecuniary interest in the result of this contestation, but he had no interest whatever that could be affected by any possible termination of the issues involved.” — Citing authorities. “It is the opinion of this Court however, that, under the doctrine of the common law, aside from our constitutional and statutory provisions, he had such a personal interest in the questions involved in the contestation of Medlin, in the nature of things, such a bias in favor of one of the parties to the case, as disqualified him to hear and determine the .same, and justified his action in declining so to do.”

Here, as a result of the alleged embezzlement for which the petitioner was indicted and to be tried, the bank wherein the judge was a depositor failed, and, unable to pay its depositors, was put into the hands of a receiver for the purpose of winding up its business. By the alleged malconduct of the petitioner, the judge is made to suffer a loss in property — money deposited with the bank — -to what extent does not appear, whether the total of his deposit, or only a part, but that is immaterial. Under tlie facts, we think that the judge had such a personal interest in the subject-matter of the pending prosecutions, such as in the nature of things was calculated to produce in the mind a bias such as would impair, if not prevent, that equipoise which the stern morality of the common law demands in the administration of justice.

Our' conclusion, therefore, is that the judge was, by reason of interest in the result of the suit,- disqualified to try the petitioner, and, unless he certifies his disqualification after being duly informed of our conclusion, the writ will issue as prayed for.

McClellan, C. J., Simpson and Denson, JJ., concurring. '