The Glenwood post., 1915-08-28
that if there are any facts and
circumstances disclosed from which
. deduction could reasonably Be

made that a judge had leaning
toward one side of question in
VOWED, from other considerations
than those belonging to it, or
bias in relation thereto which
would in all probability interfere
with his fairness and judgment,
he is incompetent to try the cause
for he is then within the meaning
of the statute, prejudieed.''
The rule followed in other states i.
well expressed in People VS.. Findley
l32 Calf, 30l:
1.-The affidavit or affidavits
must not only state facts, but the
satisfaction Of a reasonable mind
that the judge has bias or preju-
dice that will in all probability
prevent him from dealing fairly
with the defendant
The difference in attitude between
our supreme court and that of other
states is sufficiently apparent from
these two quotations:
Further, our court states in the opin.
ion under discussions:
1.-The change of judge is condi-
toned not upon the actual fact of
prejudice but upon the imputa-
ton of it. The facts set forth in
the refutation must, for the pur-
pose of the motion, be accepted as
true, notwithstanding they may be
known to the Judge and al man.
kind to be false. The whole mat
ter is left with the affidavits full
filling the requirements of the
statute are presented, the change
must be made and the truth of the
matter is not open to question"
This last quotation, by the way
should dispose once and for all of any
contention that by its decision the
supreme court has found, as a matter
of fact, that the charges against Judge
Hillyer were well founded.
With reference to the requirement
of the statute that the prejudice
charged must be shown by the aft
davits of two credible persons, the
court says:
1.-The credibiiity of the persons
| aA iln4ai.. !,
the statute must be presumed un-
less the contrary appears from the
atfidavits.''
1t is somewhat difficult to conceive
case in which the affidavit itself
would show the person making it not
to be a credible person if it is not
shown by allegations known to all
mankind to be false.
This decision is momentuous and far.
reaching in character, not because of
any effect it will have upon the pres.
ent prosecutions of the strike cases in
which no doubt it will be possible 10
find other judges to preside, but as !,
precedent binding upon the district
courts of this state and governing
their procedure so long as the statute
remains unrepealed and this decision
| is not Overruled. 1t is apparent that
any judge, no matter of how high ir.
tegrity or how pure may be his No.
tives, will be compelled upon the fl.
ing of a petition and affidavits setting
up facts which may be shown to the
Judge and to every other person in the
community to be false, to call in an.
other judge to try the case and to per
nit the allegations appeasing his char
acter to remain uHchallenged. 1t wouli
| seem that the courts could hardly be
placed in a more helpless position and
that the statute upon which this de-
cision is based should be radically
changed. If it be considered the prop.
er policy of this state that no defend,
ant should be tried before JUICE 70
whom he cherishes dislike, then the
statute should be amended to require
the judge to call in another upon the
mere filing of a motion for sucn
change by the defendant, without spe-
cifying any reason therefore.
In other words, the judges should
be subject to peremptory challenge by
the defendant in order that the public
scandal of filing charges of any char,
acter the defendant may See fit against
the judge and permitting them to re-
main unanswered, might be avoided.
Or, if there is still. some desire to up
hold the position Of the judge as one Of
honor and dignity, the statute should
provide in every case where an appli.
cation for q change of judge is made,