The Clayton news. (Clayton, N.M.) 19??-1954, 1916-08-26

State of New Mexico, Ex Rel,
VS. No. 1896
Robert L. Mansker Sheriff
State of New Mexico Ex Rel.
vs. No. 1858.
Robert T. Mansker, Sheriff
OPINION
As the grounds for a change of
venue from this District to the
Fourth Judicial District are substan-.
TALLY the same in the two above
entitled cases, the Court will file the
same apinion and ordered in each
case.
Briefly stated, the grounds upon
which the defendant bases his ap-
pllcation for a change of venue are.
that the Judge of this court is a
material witness in his behalf: that
the Judge of this Court is biased
and prejudiced against him. aud.
when the defendant was suspended
from office, the Judge of this Court
appointed one, +. J. Crumley who
was a bitter partisan enemy of the
defendant as acting sheriff. and
that defendant fears that with the
Judge of this court presiding. and
the said Crumley acting as sheriff.
they will so influence and prciud-
ice the minds of the people of this
county against the defendant that
it will be impossible for him to OBJ
tain fair and impartial tral.
Taking up the allegation that the
Judge Of this Court is material
witness for the defendant. and has
been subpoenaed, etc, it is sunici-
ent answer to say that said Judge
knows EsthiIlE iu behalf of uefend-
ant that would be competent evid-
ence in this case. Defendants at
torneys have stated that they wish
to prove by said Judge that the de-
fendant had written him, calling at
tention to certain violations of the
anti-gambling law. 1t is true that
in the letter part of l9l2,or the early
part Of 1913, the defendant did write
said Judge that one Carl Ekmnd. of
Clayton, was violating the gambling
law and defying him and his dep
Eties. That, however, was long pri-
or to any transactions of the defend
ant, set up in this cause. Moreover,
the letter in question was at once
turned over to the District Attorney.
for investigation and action thereon.
The letter itself would be the best
evidence of what it contained. and |
any testimony of said Judge upon
that point, under law, would be clear
ly incompetent, and, therefore, in .
admissible.
As to the allegations of bias and .
prejudice, shown in securing evil .
dence, the Judge of this Court has
had nothing to do with securing the .
evidence on behalf of the state. That
is no part of his duties, in his or In
any other case He has left that in
the hands of the attorneys represent
ing the State, where it rightfully
belongs. In this case, as in all cases
he has permitted them to go ahead
and use their own best judgment as
to what means they should pursue
to obtain legitimate and truthful ev-
ldenee. He is confident they would I
not seek or use any other kind.
IL is charged that the said Judge is
biased and prejudiced, because the
evidence heard by him and at the
preliminary hearing, "even true, was
wholly insufficient to justify the sus-
pension by the Court of the defend
ant" This is the position that
nearly every defeated litigant takes.
and, in no sense, would disqualify
the Judge from passing upon such
questions of law as may arise at the
trial. az
Another reason charged is that af- {
ter said Judge had heard the evil {
denee at the preliminary hearing,
and before rendering his opinion, he {
sent for I. J. Crumley, and asked [
him If he would accept the appoint
ment as acting sheriff. We can con- /
ceiye OF nothing more natural or {
proper, under such circumstances. q
Or course, the Court having made up v
It's mind that it was its duty to re- I