Moore v. State

MARSHALL, CJ.

1. A defendant in a criminal proceeding is entitled to have the case heard and determined by an impartial tribunal, and where the defendant is not entitled to demand a jury and the judge or magistrate is the trier of the facts and it is claimed that the judge has predetermined the fact of guilt and that the defendant will be unable to secure a fair trial for that reason and asks that the cause be removed to some other court of competent concurrent jurisdiction and offers to introduce evidence in support of the request for removal which is refused and the cause proceeds to judgment of conviction and sentence, such refusal to hear evidence is a denial of due process of law.

2. Upon motion being filed before a probate judge in a misdemeanor case where the defendant is not entitled to jury trial as of right on the ground that defendant will not be able to secure a fair trial before the court, it is the duty of the court to hear evidence upon the issue of bias or prejudice, if the objection is made and the evidence offered before trial, and refusal to do so is reversible error.

(Day, Allen, Kinkade, Robinson, Jones and Matthias, JJ., concur.)