Woodsmall v. State , 181 Ind. 613 ( 1914 )

Dissenting Opinion.

Morris, J.

I cannot concur in the majority opinion. In my judgment the act of 1907 (Acts 1907 p. 85, §423 Burns 1914) has no application to criminal causes; even if it does, appellant’s second affidavit for a change of judge was not allowable under its provisions. It is only where a “judgment is reversed and the cause is remanded for a new trial” that a second change is permissible. On the former appeal (Woodsmall v. State [1913], 179 Ind. 697, 102 N. E. 130) the only question presented related to the validity of the indictment, which was held, by this court, to be insufficient. No new trial was ordered. The statute confers the right to a second change, not merely on the reversal of the former judgment, but when, in addition, a new trial has been ordered. No part of the act should be overlooked in interpreting it. This is especially true where the reason of the statutory requirement is apparent. The act grants the right to a change only for bias or prejudice of the presiding judge. The bias or prejudice contemplated must be Tor or against a party personally, and not his cause of action or defense. Hays v. Morgan (1882), 87 Ind. 231; 4 Ency. Pl. and Pr. 408; 40 Cyc. 133. It is not conceivable that a judge should be prejudiced against the law. In ruling on demurrers, motions to quash, and the like, he exercises no discretion and his interpretation of the law could scarcely be affected by prejudice. By the language of the statute, the second change can be granted only where the mandate of reversal includes the granting of a new trial, and there is no sufficient reason, in my judgment, for concluding that it was intended by the legislature to cause the expense and delay occasioned by a change of judge when the former judgment was reversed for only an erroneous ruling on a challenge of the sufficiency of a pleading. If the clause relating to a new trial were eliminated from the act, I would still be of the opinion that the statute was not intended to apply to criminal cases. The legislature of 1852 adopted a code of civil procedure and also a criminal one. These codes have continued separate and distinct, and there has been no substantial commingling bf their provisions. Maloney v. Newton (1882), 85 Ind. 565, 568, 44 Am. Rep. 46. At the session of 1905, the legislature enacted a provision of our criminal code, prepared by a commission appointed in 1903. §§1866-2232 inclusive Burns 1914, Acts 1905 p. 584. The act repealed all laws within its purview.

We find in the civil code, previous to the act of 1907, provisions for a change of judge, applicable to both parties. §422 Burns 1914, §412 R. S. 1881. We find in the criminal code, provisions for a change, but applicable to the defendant only. §2074 Burns 1914, Acts 1905 p. 584, §203. I do not doubt the power of the legislature to enact rules of procedure applicable alike to criminal and civil causes, but I do question the legislative intent to depart from the general policy pursued since 1852 of keeping the rules of procedure in civil cases separate from those in criminal ones. But a stronger reason for concluding that the act was not intended to apply to criminal .cases is discerned in the fact that while its provisions fit in with the former ones of the civil code, in regard to a change of judge, they do not adjust themselves to the change of judge provisions of the criminal code. The language of the act implies that either party may have secured a change of judge, for bias or prejudice, before the first hearing, but this was not possible to the State, under the provisions of the criminal code. Neither Indiana nor any other state, to my knowledge, has ever granted to the prosecution in a criminal action the right to demand a change of judge because of his bias or prejudice. While a judge might be prejudiced against a defendant, it is impossible of comprehension that he should be prejudiced against the State, yet this statute uses the general term “bias or prejudice,” and, if applicable to criminal actions, it must be held that, after a judgment has been reversed, the prosecuting attorney may demand a change of judge because of his prejudice against the State of Indiana. This right, however, cannot obtain until after a judgment had been reversed, because, under the provisions of the criminal code, no such right exists. §2074 Burns 1914, supra.

In my opinion the trial court properly overruled appellant’s motion for a second change of judge, and the judgment should be affirmed.

Note. — Reported in 105 N. E. 155, 899. See, also, under (2) 12 Cyc. 292; (4) 23 Cyc. 602, 606; 12 Cyc. 245; (5) 23 Cyc. 607; (6) 23 Cyc. 607; 12 Cyc. 245; (7) 23 Cyc. 601; 8 Cyc. 806.