The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1910-05-27

Section 4OaS, Il. L. 1905. relating
to the disqualification of Judges,
construed and held, in accordance
with Sioberg V. Nordin, &c Mimi.
Dol. not to disqualily judge from
sitting in a case if he be related
within the ninth degree to the attor-
.ney OF either party. Order reversed.
On November Is. 1909, the grand Jury
of the county of Blue Earth returned
to the district court of that county an
Indictment sufficient in form and sub
stance, against the defendant herein
whereby she was accused of the crime
of murder in the first degree in that,
on May 4. 1909, within such county she
did with the premeditated design to
effect the death of Holland j. Ledbeter
feloniously kill and murder him. She
was duly arraigned and required to
not guilty to the offense charged there
IN. She was then placed on trial for
the offense and the jury, on December
81 1909, returned verdict of not
quit: Iherenpon the court adjudged
that she be discharged. The Judge who
presided at the defendants trial was
the father of one of her attorneys who
acted for her during the trial Such
fact was known at all times before at,
and during the trial to the assistant at
torney general and associate counsel,
who represented the state and con-
Quoted the trial on it's behalf, but no
ODJect1On whatever was made to the
competency of the judge or to his presid-
ing at the trial. On February = 1910.
the grand jury returned to the district
court another Indictment against the
defendant whereby she was accused of
the crime of murder in the second de-
gree. The crime charged in the first
indictment was the identical crime
charged in the second Indictment Upon
being arraigned and required to plead
to the second indictment she entered
the plea of former acquittal and jeo-
pardy. alleging the facts we have stated
The state demurred to the plea and
the demurrer was sustained by the
trial court on the ground that the judge
who presided at the first trial. was dis
qualified to sit on the trial of the de-
PENDANT on the first indictment. there
fore the court was without jurisdiction
and the trial, verdict of not guilty and
Judgment Of acquttal were absolutely
void. hence the defendant was never in
Jeopardy. The question as to the suffi-
cheney of the plea of former jeopardy
was certified to this court pursuant to
f.. l.. 1905. S. 5409.
What the Record Presents.
The record presents the questions
whether the trial court was disqualified
and, if SO. are the verdict and judgment
OF acquittal absolutely void. If the
judge was not. disqualified then the
the judge was. disqualified lin this case
1T must have been by virtue of some
clear and positive statute, for at COM
mon law, while judge. could not sit
In his own case nor in one in which
he had pecuniary interest yet his re-
lationship, by affinity of consanguinity,
to party or his attorney was not a dis
qualification. 1t is the contention of
the state that judge is expressly dis
qualified by statute to sit in' any case
If he be related by consangunity or
affinity within the ninth degree, to any
attorney in the case, and if he sits in
such case all proceedings therein. in
GLIDING the judgment. are absolutely
1906. Sec 4O9s which reads as follows:
mo judge shall, sit in any cause.
except to hear a motion to change the
venue, If he he interested in its deter
mination. or if he might be excluded
for bias from acting therein as juror.
If he be the only judge of the court
or district. he shall grant a change of
the venue. whenever. upon motion
therefor, his interest or bias shall be
made to appear. unless before the mo-
assigned another judge to try such cause
Provided that such sole judge may or
der the venue changed. upon his own
to SIT in 1.-THE cause" H.:''5 -''';t
View of the Writer.
1t would seem at least such is the
view of the writer, that. if a Judge.
who is disqualified by the statute to
sit in particular, case. should do so.
the judgment would not be void. but
only voidab bic. for the statute seems to
provide that the remedy in such cases
must be by motion and that party
may not keep silent and if the result
of the trial is unfavorable to him pro-
coed as if there never had been any
trial. The injustice of any other con-
struction of the statute is illustrated by
the record in this case. 1t is no answer
to this suggested construction that the
Il. 70 ,nt~ a. Sion, n
the court on the motion if unfayorable
to it, for the state has no right of re-
view i'm any criminal case. However.
without deciding whether the suggested
be correct, we pass to the
consideration of the primary question
whether the statute disqualities a judge
from sitting in every case in which he
might be excluded for Bias from acting
therein as juror "A juror may be
excluded from acting as such i'm any
given case. by peremptory challenge
or for general disqualification or for
implied bias. or for, actual bias. The
atute under consideration. by the term
"for bias necessarily eliminates the
challenge and challenge for general
disqualification. The question is, then,
whether the statute disqualifies judge
i'm every case in which he might be eX-
Guided for bias. implied or actual. There
are more than twenty causes of challenge
for implied bias, including relationship
in the ninth degree to the attorney of
either party, and # the offense be pun
ishable by death. the entertaining of
such conscientious opinions as would
prevent the juror finding the defend
ant guilty. A juror may be excluded
for any one of the twenty causes. He
may also be excluded for actual bias
whenever it is shown to the satisfaction
i'm reference to the case or to either
party is such that he. cannot try the
issue impartially and without prejudice
to the substantial rights of the chal-
longing party. r. L.. 1905 Secs. $500
1891. Now. if by virtue. of the statute
here i'm question a judge is disqualified
from. sitting in any, cause If he might
be excluded from acting as juror
therein for either implied or actual bias
and if he does sit in the case. even
with the consent of the parties, the
trial is a moot one and the judgment
absolutely void. then 1.-THE statute is
snare menace to the constitutional
rights of the citizens, the honor of
families and the legitimacy of innocent
children. If such be the proper con-
struction of the statute. then, in
criminal case, if the judge would be
subject to challenge as a juror there
N for implied or actual bias. then the
defendant, if he is acquitted may again
De put on his trial for the same offense. |
,r. if convicted. he may be discharged
rom prison on habeas corpus. and. fur |
her where divorce is granted by
Judge so disqualified and if either party |
-emarrics the marriage is void the
if any. are illegitmate, and an
innocent woman is mother but never
| wife, A construction of the statute |
which would thus lead to legal and
social chaos ought not to- be accepted. |
lnless the clear, certain and positive |
language of the statute makes its ac-
,eptance imperative. The legislative |
md judicial history of. the statute in
Iicates its correct construction. Section |
l,f ~, l.. 1874 rlrOVidpd [