Ex parte Harris , 26 Fla. 77 ( 1890 )

Raney, C. J.:

The petitioner was arrested on a charge of robbery, and an information was filed against him in the Criminal Court of Record of Duval County, and he was brought into that Court for arraignment, whereupon the judge, the Hon. Loton M. Jones, refused to take any action in the cause either to try him or to admit him to bail, although the petitioner announced his willingness and readiness to be tried and offered bail with good and sufficient sureties. The reasons given by the judge for his course are that he is the brother of the husband of a sister of petitioner, and is, therefore, disqualified to take any action in the cause; and further, he has boarded with his said sister-in-law, and she is and has been a daily visitor to his home remaining there sometimes for days, and petitioner has also been a visitor to his house, and he, the judge,'has always been a great admirer and friend of the petitioner, and has always regarded him as scrupulously honest, and these considerations lead him to fear that he might not be able to do the State justice.

Being in the custody of the sheriff on capias issued upon the information, under the above circumstances, Harris applied to one of the justices of this Court for a writ of habeas corpus, which he issued, making it returnable before the Court, and the sheriff has made a return in keeping with the above facts, stated in the petition.

The petitioner asks to be discharged or admitted to bail.

The act of December 4, 1862, provides that “no judge of any Court, or Justice of the Peace, shall sit or preside in any cause to which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of interest, consanguinity or affinity to either of the parties; nor shall he entertain any motion in the cause other than to have the same tried.” It also makes it the duty of the judge or justice so incompetent to retire of his own motion without waiting for an application to that effect, and declares void all judgments, decrees or orders made by a justice so disqualified. Section 28-29,p. 337, McClellan’s Digest.

Judge Jones is not a party to this proceeding, nor is it the proper remedy for obtaining an adjudication between the State and him, or the prisoner and the judge, upon the question of his qualification in the premises or power to try the petitioner, and directing him to proceed in the cause as it is his duty to do, if he is not disqualified. State ex rel. Hughes vs. Walker, 25 Fla. S. C. 6 So. Rept., 169-172. Still is urged on behalf óf petitioner that the judge is disqualified, and for this reason he should be discharged or bailed as under the circumstances his detention will amount to indefinite imprisonment. If he is disqualified to hear the cause, and such disqualification is ground for the petitioner’s discharge, he should be given his liberty; so, without meaning to conclude Judge Jones upon the question in any direct proceeding against him, but merely as an answer to petitioner’s claim, we must give our views on the subject.

The interest that disqualifies a judge under the statute is a property interest in the action or its result, in contradiction to an interest of feeling or sympathy or bias that would disqualify a juror. Sauls vs. Freeman, 24 Fla., 209; Ochus vs. Sheldon, 12 Fla., 138. There is of course no consanguinity between Harris and Judge Jones. Is there any affinity ? Not according to any law we can find on the subject. Affinity is the tie arising from marriage, betwixt the husband and the blood relations of the wife, and betwixt the wife and the blood relations of the husband, but there is no affinity betwixt the kinsmen of the wife and those of the husband or vice versa-, thus, say the books, the husband’s brother^nd the wife’s sister have no affinity. The same must be true of the husband’s brother and the wife’s brother. See title “ Affinity” in the law dictionaries of Tomlin, Bouvier, Abbott, Rapalje and Lawrence. There is no affinity between the blood relatives of the husband and blood relatives of the wife. Paddock vs. Wells, 2 Barbour’s Chancery Reports, 331; Carman vs. Newell, 1 Denio, 25; Spear vs. Robinson, 29 Me., 531; Waterhouse vs. Martin, 4 Tenn., 373. These authorities and those cited in them show beyond question that there is no affinity between Judge Jones and the prisoner. Moreover, in view of the doctrine in the case of Leefe, 2 Barbour’s Chancery, 39, by Chancellor Walworth, citing Moors vs. White, 6 Johnson’s Chancery Reports, 360, by Chancellor Kent, it is questionable whether the statute operates as to affinity in a case like this where the Constitution has created a Court and made no provision for a trial by another judge or tribunal. The other circumstances upon which the judge bases his fear that he will not be able to do justice to the State, are, as indicated above, not such interest as disqualifies him, nor is the presence of the apprehension any good evidence that he will not be careful or able to do justice.

The offence is bailable under our Constitution and laws, and the prisoner should not, under the circumstances, be denied the right of bail, particularly as no steps have been taken by the State to test the correctness of Judge Jones’ position. The proper order will, if it shall be necessary, be •made on application of counsel for petitioner, for inquiry into the circumstances of the alleged offense with a view to fixing the amount of the bail, which will be conditioned in the form usual and proper in such cases, for his appearance before the Criminal Court of Record of Duval County, at the time or times to be specified under our direction, in the bail piece.

It will be ordered accordingly.