State v. Palmer

Citations

• 4 S.D. 543
• 57 N.W. 490
• 1894 S.D. LEXIS 10

Syllabus

<p>1. By the last clause of Section 7312, as amended by Chapter 50, Laws 1891, which provides that “if the accused shall make affidavit that he cannot have an impartial trial, by reason of the bias or prejudice of the presiding judge of the circuit court where the indictment is pending, the judge of such court may call in another judge of a circuit court to preside atsaid trial,” it is made the duty of such presiding judge, when such an affidavit, sufficient in form, and made and filed at the proper time by the accused, and motion made, to call another judge to preside at the trial; and the judge of such court cannot legally proceed with the trial of the accused, after the making and filing such affidavit and motion to call in another judge. “May,” in that section, is construed to mean “must,” and the statute is held, mandatory.</p> <p>2. An affidavit in which the accused says, “* * * I have reason to believe, and do believe, and therefore charge the truth to be, that I cannot have a fair and impartial trial before the presiding judge of this court, * * * by reason of his, the said judge’s, bias and prejudice against the defendant,” is substantially in the language of the statute, and sufficient. The words “have reason to believe, and do believe, and therefore,” are treated as surplusage, and held, not to affect the affidavit.</p> <p>(Syllabus by the court.</p>