State v. Rodway

47 N.W. 1061, 1 S.D. 575, 1891 S.D. LEXIS 62

• Court: South Dakota Supreme Court
• Decided: February 11, 1891
• Status: Published

Opinion

Keluam, J.

The plaintiff in error was tried and convicted in the county court of Lincoln county for violating Chapter 101, Laws 1890, by keeping a common nuisance in the City of Canton, in said county. After pleading, and before trial, plaintiff in error presented his own affidavit, supported by others that the same was true, alleging that the judge of said court “is prejudiced and biased in said action against him, and that he cannot have a fair and impartial trial before said court while said judge is presiding.” and asked in writing that another judge from some adjoining county be called in to try the cause as prescribed by Section 20, c. 78, Laws 1890. The aj^plication was denied, to which plaintiff in error duly excepted, and to review this alleged error the case comes to this court.

This same question was presented to this court, and considered at length, in State v. Chapman, 1 S. D. 414, 47 N. W. Rep. 411, and it was there held that affidavits making the naked allegation of the bias and prejudice of the judge do not necessarily make it “appear to the satisfaction of the court” that the judge is so biased or prejudiced; that the clear intimation of the expression, “to the satisfaction of the court,” is that the court shall judicially consider and pass upon the sufficiency of the affidavits presented, or other testimony, to prove the fact of bias or prejudice, and that the bare statement of the ultimate fact, in one or more affidavits, is not conclusive upon the judgment of the court; that it is the judgment of the court, and not that of the affiant, that is to be satisfied; and the court is not compelled to adopt as its own the conclusion or the judgment of the party making the affidavit Following the case cited, the judgment appealed from is affirmed.

All the judges concurring.