FURMAN, P. J.
(after stating the facts as above). In their brief in support of the petition for mandamus, counsel for relator state their position in the following language:
“It is the contention of the petitioner that the-holding of the court of inquiry by the respondent, as set forth in petitioner’s petition and admitted in the answer and return of the respondent, that the respondent became in law and in fact disqualified to preside as judge of the county court in the trial of this petitioner. While there are other allegations alleging disqualification of respondent, the above is the only point which we desire to press, and the one upon which we rely in this cause as a reason why the respondent is disqualified to preside as trial judge in the county court in the trial of the petitioner upon the charge aforesaid.”
If this contention be true, then every county judge who issues a warrant for the arrest of a defendant upon an information is disqualified from trying the case.
Section 6577, Snyder’s Comp. Laws of Okla. 1909, is as follows:
“When an information, verified by oath or affirmation, is laid before a magistrate, of the commission of a'public offense, he must, if satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, issue a warrant of arrest.”
In the case of
De Graff v. State,
2 Okla. Cr. 519, 103 Pac. 538, this court said:
“From this it is seen that, the warrant of arrest must be based upon the information. The statute might have provided that the warrant of arrest should be issued upon an affidavit, or affidavits, which stated facts sufficient to satisfy the magistrate that an offense had been committed, and that there whs reasonable ground 'to believe that the party charged had committed it; but there is no such provision in our statute. On the'contrary, by the express language of the statute, the information is made the root and foundation of the matter, so. far as the issuance of the warrant of arrest is concerned, and this information must be verified by oath or affirmation. Another thing about
this statute which must not be overlooked is that the magistrate, who issues the warrant is the person who must be satisfied that an offense has been committed, and that there is reasonable ground to believe that the defendant did commit it. This calls for the exercise of discretion on the part of the magistrate who issues the warrant. It is a judicial act on his part.”
The De Graff case was reaffirmed in
Bowen v. State,
5 Okla. Cr. 605, 115 Pac. 376.
It is therefore seen that if we adopt the contention of counsel for relator, the effect would be to practically prohibit the trial of criminal cases by information in the county courts of the state, because in such cases the warrant must be issued by the county judge, and no warrant can be issued by a county judge, unless he is satisfied that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it. Even if it were not for this statute, we still could not agree to the contention of counsel for relator.
In the case of
Ingles v. McMillan, Judge,
5 Okla. Cr. 131, 113 Pac. 998, after a full discussion of the authorities, this court said:
“The constitutional provision which guarantees to every person charged with crime a trial without prejudice, in so far as it relates to the judge who presides at the trial, does not include the opinion of the judge as to the guilt or innocence of the defendant; but, in order to disqualify a judge, it must be shown that he is biased against, or entertains ill will or hostility toward, the defendant of such a character as might prevent him from giving the defendant a fair trial; and this must be shown as a matter of fact, and not as a matter of opinion of the defendant or any other person. A judge does not try the facts of a case. He simply passes upon the questions of law presented.”
In the Ingles case we examined every accessible authority, and did not find a single decision, where prejudice' must be proven, in conflict with the doctrine we there announced. An examination of the Ingles case will show that in a number of states it has been expressly held that a judge is not disqualified upon the ground of prejudice from presiding at the trial of a case,
merely because he had previous thereto held a court of inquiry and bound the defendant over to trial.
In the case of
Johnson v.
Wells, 5 Okla. Cr. 599, 115 Pac. 375, an attempt was made to disqualify the county judge of Coal county upon the ground that he was a material witness for the defense; but this court refused to recognize this as being
per se
a ground of disqualification, and held that where this ground was relied upon the allegations contained in the petition must be such as to enable this court to determine, as a matter of fact, that such judge was thereby so disqualified. We now reiterate the statement that the mere fact that a judge may be a witness in a case does not, in and of itself, necessarily disqualify him from presiding in the trial of such case. It is true we have no statute directly providing that a judge may testify in a case over which he is presiding; but section 6494 of Snyder’s Comp. Laws of Okla. 1909 is as follows:
“The procedure, practice and pleadings in the district courts of this state, in criminal actions or in matters of criminal nature, not specifically provided for in this Code, shall be in accordance with the procedure, practice and pleadings of the common law, and assimilated as near as may be with the procedure,' practice and pleadings of the United States or Federal side of said court.”
We must therefore look to the common law to determine what the true rule is. There is no higher or safer authority on this subject than Mr. Wigmore. On page 2529, vol. 3, Wigmore on Evidence, the law upon this subject is stated as follows:
“Coming, then, to the reasons set forth in the above quotations, it will be seen that one of them at least — the inability of the judge to administer the witness’ oath to himself — is a petty obstacle (if it is one), which should rather be obviated (as it is in many jurisdictions) by a statute empowering the clerk to administer, rather than by the clumsy solution of disqualifying the judge. Furthermore, as to some of the other reasons, such as the impropriety of the judge passing upon his own claim of privilege, and the unseemliness of the judge being impeached for unveracity by the opponent, it may be said that these are the merest possibilities, that they may be trusted to be avoided through the combined good sense and discretion of counsel and judge, and that to establish a universal rule for the sake of rare
contingencies is unpractical and unnecessary.
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FURMAN, P. J.
(after stating the facts as above). In their brief in support of the petition for mandamus, counsel for relator state their position in the following language:
“It is the contention of the petitioner that the-holding of the court of inquiry by the respondent, as set forth in petitioner’s petition and admitted in the answer and return of the respondent, that the respondent became in law and in fact disqualified to preside as judge of the county court in the trial of this petitioner. While there are other allegations alleging disqualification of respondent, the above is the only point which we desire to press, and the one upon which we rely in this cause as a reason why the respondent is disqualified to preside as trial judge in the county court in the trial of the petitioner upon the charge aforesaid.”
If this contention be true, then every county judge who issues a warrant for the arrest of a defendant upon an information is disqualified from trying the case.
Section 6577, Snyder’s Comp. Laws of Okla. 1909, is as follows:
“When an information, verified by oath or affirmation, is laid before a magistrate, of the commission of a'public offense, he must, if satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, issue a warrant of arrest.”
In the case of
De Graff v. State,
2 Okla. Cr. 519, 103 Pac. 538, this court said:
“From this it is seen that, the warrant of arrest must be based upon the information. The statute might have provided that the warrant of arrest should be issued upon an affidavit, or affidavits, which stated facts sufficient to satisfy the magistrate that an offense had been committed, and that there whs reasonable ground 'to believe that the party charged had committed it; but there is no such provision in our statute. On the'contrary, by the express language of the statute, the information is made the root and foundation of the matter, so. far as the issuance of the warrant of arrest is concerned, and this information must be verified by oath or affirmation. Another thing about
this statute which must not be overlooked is that the magistrate, who issues the warrant is the person who must be satisfied that an offense has been committed, and that there is reasonable ground to believe that the defendant did commit it. This calls for the exercise of discretion on the part of the magistrate who issues the warrant. It is a judicial act on his part.”
The De Graff case was reaffirmed in
Bowen v. State,
5 Okla. Cr. 605, 115 Pac. 376.
It is therefore seen that if we adopt the contention of counsel for relator, the effect would be to practically prohibit the trial of criminal cases by information in the county courts of the state, because in such cases the warrant must be issued by the county judge, and no warrant can be issued by a county judge, unless he is satisfied that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it. Even if it were not for this statute, we still could not agree to the contention of counsel for relator.
In the case of
Ingles v. McMillan, Judge,
5 Okla. Cr. 131, 113 Pac. 998, after a full discussion of the authorities, this court said:
“The constitutional provision which guarantees to every person charged with crime a trial without prejudice, in so far as it relates to the judge who presides at the trial, does not include the opinion of the judge as to the guilt or innocence of the defendant; but, in order to disqualify a judge, it must be shown that he is biased against, or entertains ill will or hostility toward, the defendant of such a character as might prevent him from giving the defendant a fair trial; and this must be shown as a matter of fact, and not as a matter of opinion of the defendant or any other person. A judge does not try the facts of a case. He simply passes upon the questions of law presented.”
In the Ingles case we examined every accessible authority, and did not find a single decision, where prejudice' must be proven, in conflict with the doctrine we there announced. An examination of the Ingles case will show that in a number of states it has been expressly held that a judge is not disqualified upon the ground of prejudice from presiding at the trial of a case,
merely because he had previous thereto held a court of inquiry and bound the defendant over to trial.
In the case of
Johnson v.
Wells, 5 Okla. Cr. 599, 115 Pac. 375, an attempt was made to disqualify the county judge of Coal county upon the ground that he was a material witness for the defense; but this court refused to recognize this as being
per se
a ground of disqualification, and held that where this ground was relied upon the allegations contained in the petition must be such as to enable this court to determine, as a matter of fact, that such judge was thereby so disqualified. We now reiterate the statement that the mere fact that a judge may be a witness in a case does not, in and of itself, necessarily disqualify him from presiding in the trial of such case. It is true we have no statute directly providing that a judge may testify in a case over which he is presiding; but section 6494 of Snyder’s Comp. Laws of Okla. 1909 is as follows:
“The procedure, practice and pleadings in the district courts of this state, in criminal actions or in matters of criminal nature, not specifically provided for in this Code, shall be in accordance with the procedure, practice and pleadings of the common law, and assimilated as near as may be with the procedure,' practice and pleadings of the United States or Federal side of said court.”
We must therefore look to the common law to determine what the true rule is. There is no higher or safer authority on this subject than Mr. Wigmore. On page 2529, vol. 3, Wigmore on Evidence, the law upon this subject is stated as follows:
“Coming, then, to the reasons set forth in the above quotations, it will be seen that one of them at least — the inability of the judge to administer the witness’ oath to himself — is a petty obstacle (if it is one), which should rather be obviated (as it is in many jurisdictions) by a statute empowering the clerk to administer, rather than by the clumsy solution of disqualifying the judge. Furthermore, as to some of the other reasons, such as the impropriety of the judge passing upon his own claim of privilege, and the unseemliness of the judge being impeached for unveracity by the opponent, it may be said that these are the merest possibilities, that they may be trusted to be avoided through the combined good sense and discretion of counsel and judge, and that to establish a universal rule for the sake of rare
contingencies is unpractical and unnecessary. The only real and remaining objections to the judge’s assuming the place of a witness seem to be in the first place, that he would be put thereby into a more or-less partisan attitude before the jury, and would, thus, as a judge, lose something of the essential traits of authority and impartiality; secondly, that his continuing power as judge would embarrass and limit the opposing counsel in his cross-examination of the judge witness, and would thus unfairly restrict the opponent’s opportunity to expose the truth; and, thirdly (though this is itself inconsistent with the first reason), that the judge’s official authority would impress his testimony upon the jury with special, and therefore unfair, weight. ‘In all these objections, there is a modicum of truth. Yet is it necessary on that account to lay down a universal prohibition? The force of the objestions would be most seen and would rise to an appreciable degree only when the judge became a principal witness, as in the case put by King Henry IV, where the judge had been an eyewitness of a murder. In all such batanees (which are rare enough), the usefulness of his testimony would be known beforehand, and his own discretion, and the parties, could be trusted to send the cause before another judge for trial. But in the ordinary instance the judge’s testimony is desired for merely formal or undisputed matters, such as the proof of execution of a certification, or of'the administration of an oath, or of a deceased witness’ former testimony. To suppose here a danger that the inconveniences above noted would occur in any appreciable degree is to be unduly apprehensive. Military commanders do not train cannon on a garden gate; and the law of evidence need not employ the cumbrous weapon of an' invariable rule of exclusion to destroy an entire class of useful and unobjectionable evidence, in order to avoid embarrassments which can easily be dealt with when they arise. Since the trial judge has no interest to subject himself or counsel or jury to these supposed embarrassments, it may properly be left to his discretion to avoid them, when the danger, in his opinion, arises, by retiring from the bench before trial, begun, or .by interrupting and postponing the trial, and securing another judge.”
This authority clearly lays down the doctrine that a judge may be a witness in a case over the trial of which he is presiding. In addition to the reasons giyen for this rule by Mr. Wigmore, suppose during the trial of a case it is unexpectedly discovered that some material fact in the case is within the personal knowl
edge of the presiding judge. To deny to either party the right to use the presiding judge as a witness might result in the defeat of justice. It should never be forgotten that the purpose of a trial is to discover the truth and to vindicate justice, and mere sentiment should never be permitted to interfere with this supreme purpose. The contingency above suggested arose twice in the practice of the writer of this opinion. On each occasion' the trial judge was sworn and testified as a witness, and the incident passed off without the least embarrassment to the judge, the counsel, or to either party to the case. We do not desire to be understood as holding that cases in which a judge may be a witness may not arise, in which it would be better for the judge to be disqualified from presiding at such a trial; but this matter should be determined by the circumstances of each case as they arise. We only desire to say that the mere fact that a judge may be a witness in a case does not, in and of itself, necessarily disqualify him from presiding at the trial of such case. Applying the principle hereinbefore stated to the case at bar, we hold that the fact that respondent conducted the preliminary examination which resulted in the prosecution of the relator, in the absence of any showing as to personal bias or prejudice upon the part of respondent toward relator, does not constitute such prejudice as will disqualify respondent from presiding at the trial of relator upon said charge.
The writ is therefore denied.
ARMSTRONG and DOYLE, JJ., concur.