Robertson v. Bozarth , 87 Okla. 102 ( 1922 )

This is an original proceeding in this court by J.B.A. Robertson, petitioner, against Mark L. Bozarth, as judge of the district court of the Twenty-Second judicial district, including Okmulgee county, for a writ of mandamus, requiring the said Judge Bozarth to certify his disqualification to sit as judge in the trial of a criminal cause pending in Okmulgee county, wherein said J.B.A. Robertson stands charged with the crime of accepting a bribe from a defunct bank. The petition and return of the alternative writ form the issues to be passed upon by this court.

As we view the case there are but two determinative propositions involved: First, the question of law, whether this court has jurisdiction to grant a writ. Second, the question of fact as to whether the evidence shows Judge Bozarth to be disqualified to try the case.

As to the first proposition, the question of jurisdiction, the Constitution itself is clear, adequate, and of sufficient authority. Article 7, section 2, provides:

"The appellate jurisdiction of the supreme Court shall be co-extensive with the state, and shall extend to all civil cases at law and in equity, and to all criminal cases until a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases shall be established by law. The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all commissions and boards created by law. The Supreme Court shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and such other remedial writs as may be provided by law, and to hear and determine the same; and the Supreme Court may exercise such other and further jurisdiction as may be conferred upon it by law. Each of the justices shall have power to issue writs of habeas corpus to any part of the state upon petition by or on behalf of any person held in actual custody, and make such writs returnable before himself, or before the Supreme Court, or before any district court, or judge thereof in the state."

The bearing which this section has upon the question of the jurisdiction of this court may possibly be made clearer by considering the question under two heads, viz.: First, Appellate Jurisdiction. Second, Original Jurisdiction.

With reference to the first head, said article 7, section 2, supra, reads:

"The appellate jurisdiction of the Supreme Court shall be co-extensive with the state, and shall extend to all civil cases at law and in equity, and to all criminal eases until a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases shall be established by law."

It is clear from this language that the appellate jurisdiction of this court extends exclusively to all civil cases, and that the Legislature has no power to limit or take away such jurisdiction. This conclusion, however, may be strengthened and made clearer by the following statutory definitions:

Section 4644, Rev. Laws 1910, defines an action as follows:

"An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense."

Section 4646, Id., says:

"Actions are of two kinds, first, civil; second, criminal."

Section 4647, Id., says:

"A criminal action is one prosecuted by the state as a party, against a person charged with a public offense, for the punishment thereof."

Section 4648, Id., says:

"Every other is a civil action."

That is, every other action except "one prosecuted by the state as a party, against a person charged with a public offense for the punishment thereof," is a civil action.

Section 4650, Id., says:

"The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and in their place there shall be, hereafter, but one form of action, which shall be called a civil action."

Thus, as above said, every action except one prosecuted by the state as a party, against a person charged with a public offense, for the punishment thereof, is a civil action; hence, we must conclude from the above constitutional provisions and statutory definitions that the appellate jurisdiction of this court extends to every action "except one prosecuted by the state as a party, against a person charged with a public offense, for the punishment thereof."

Second, as to the original jurisdiction of this court, said article 7, section 2, reads:

"The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all commissions and boards created by law. The Supreme Court shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and such other remedial writs, as may be provided by law, and to hear and determine the same. * * *"

The above language needs no interpretation nor authorities to define its meaning. It means simply what it says — that "the original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all commissions and boards created by law. The Supreme Court shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and such other remedial writs as may be provided by law, and to hear and determine the same. And it must be conceded that the district court is an inferior court to the Supreme Court, and also conceded that the Legislature can neither limit nor take away this original power conferred by the Constitution upon the Supreme Court.

Hence, bearing in mind that this is an original action in this court and that said article 7, section 2, supra, so defines and denominates it, and, inasmuch as section 4647, Rev. Laws 1910, supra, expressly says that a criminal action "is one prosecuted by the state as a party, against a person charged with a public offense, for the punishment thereof," and section 4648, Rev. Laws 1910, supra, says that, "every other is a civil action"; and, inasmuch as section 4650, Id., provides that "the distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished, and in their place there shall be, hereafter, but one form of action, which shall be called a civil action" — we are forced to the conclusion that the case at bar is a civil action, and that this court has jurisdiction to hear and determine same.

This conclusion may be strengthened by the following authorities, to wit: Section 1769, Rev. Laws 1910, and section 1770, Id.; also Homesteaders v. McCombs, 24 Okla. 201,103 P. 691; State ex rel. Pinny v. Williams, 69 Ala. 315; Ex parte City Council of Montgomery, 64 Ala. 463; State v. Cranny (Wash.) 71 P. 50; Seymore Water Co. v. Seymore, 163 Ind. 120, 70 N.E. 514; State v. Gracey, 11 Nev. 223; Perez v. Barber, 70 N. Mex. 223; In re Epley et at., 10 Okla. 631, 64 P. 18; People v. Lueders et al. (III.) 122 N.E. 374; Marshall County Judge v. Sitton, 68 Oklahoma, 172 P. 964; Matney v. King,20 Okla. 22. 93 P. 737.

As to whether the Criminal Court of Appeals would have had jurisdiction to determine the question at bar, as a part of and in aid of its appellate jurisdiction in criminal cases, had the action been brought in that court, it is unnecessary to decide. The cause having been originally brought here as an original action, it is sufficient to say that this court has jurisdiction to hear and determine same.

Second proposition: The question of fact, whether Judge Bozarth, by reason of bias and prejudice, is disqualified to try the petitioner for the alleged crime of accepting a bribe, is one which should be determined from all the surrounding circumstances, conditions, and oral testimony as may be before us. It is a question which, as Judge Bozarth rightfully said, is largely a psychological question, which he believes the court should pass upon.

The law itself, though possibly without full realization of the fact, rests for the most part upon this very theory, where the question of "fair and impartial trial" is involved. It guarantees to every one charged with a crime a fair and impartial trial; not only provides for it, but guarantees it. Section 6 of the Bill of Rights, article 2, of the Constitution of Oklahoma. It recognizes such guarantee as the bulwark of safety to civil government; that to ignore or abolish same would mean the final and inevitable destruction of civil government, and, in order to enforce such guarantee, the law is so jealous that even where a juror, in a criminal case, is challenged and examined for cause, though he may declare his ability and willingness to render a fair and impartial verdict according to law and the evidence, yet the circumstances and conditions surroundings him may be shown to be such that the trial court cannot accord to him that fair, free, impartial, and unprejudiced condition of mind which the law contemplates in its sacred guarantee of a fair and impartial trial, and so sustains the challenge and excuses the juror. So, it may be said in the case at bar, Judge Bozarth may say and believe that he would not allow his personal feelings to enter into or control his official acts; he may say and believe that he could and would give to petitioner, J.B.A. Robertson, a fair and impartial trial; and, though he has shown that he bears the general reputation of being an unusually able, fair, and impartial judge, and we believe he merits such reputation, yet, under the hampering and embarrassing circumstances which are shown to surround him; under the unusual difficulties and intimidated conditions which confront him, bearing in mind that he is a resident of the city and county of Okmulgee, and realizing that he has many friends among the populace — yet, bearing in mind the intense bitterness of feeling and prejudice existing among the populace of that city and county against petitioner, J.B.A. Robertson, and that such bitter feeling is known to Judge Bozarth, and that he has many friends among them, who want him, notwithstanding their prejudice against the petitioner, J.B.A. Robertson, and their friendship for Judge Bozarth, to try the case, and bitterly oppose and resist his disqualifying himself, and, though importuned to disqualify himself by counsel for petitioner, J.B.A. Robertson, he has persistently refused to do so; bearing in mind, further, that threatening gatherings and demonstrations against the petitioner, J.B.A. Robertson, even to the extent of almost 200 in masked regalia, followed and cheered by hundreds of citizens, have been made in Okmulgee, and that Judge Bozarth has had at least indirect knowledge of same, and that he has taken not a step nor uttered a word to stop the same; and considering also the fact that circumstances have arisen between Judge Bozarth and the petitioner, J.B.A. Robertson, that have engendered an ill feeling on the part of Judge Bozarth against the petitioner, J.B.A. Robertson, and that Judge Bozarth testified on the witness stand that such ill feeling had been engendered and now exists against the petitioner.

We know of no statute or decision on the subject of a fair and impartial trial which attempts to distinguish between the condition of an individual's mind and the condition of the same mind admittedly laden with ill feeling against the accused while acting is an official instrumentality. Section 6 of the Bill of Rights, article 2, of the Constitution of Oklahoma, reads as follows:

"The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice."

Under all these adverse facts, circumstances, and conditions, we cannot accord to Judge Bozarth that free, fair, and unbiased state of mind, nor that freedom of action, which the law contemplates in its guarantee of a fair and impartial trial without prejudice. We believe it would be unfair to Judge Bozarth to require him to try this case under the restrictive forces and circumstances which surround him, and that the law will be better subserved by assigning some other strong and able judge, who is free from the restrictions and embarrassments which surround Judge Bozarth.

It is therefore the opinion of this court that the demurrer of the county attorney of Okmulgee county, to the jurisdiction of this court be, and the same is hereby, overruled, and, under all the evidence before us, it is the further opinion of this court that a peremptory writ of mandamus should forthwith issue to said Judge Mark L. Bozarth, requiring him, upon service of same, at once to certify his disqualifications to try J.B.A. Robertson in said cause, No. 2381, in the district court of Okmulgee county, wherein the said J.B.A. Robertson is charged with the crime of accepting a bribe, and the clerk of this court is hereby directed to issue such writ.

KANE, JOHNSON, McNEILL, KENNAMER, and NICHOLSON, JJ., concur. MILLER, J., dissents. PITCHFORD and ELTING, JJ., not participating.