The plaintiff has petitioned for a rehearing. The petition is largely a reargument of the questions considered and determined in the former opinion. It is earnestly and vigorously contended that the actions of Judge Thomson were void and that the judgment and sentence pronounced by him as judge of the District Court of Walsh County were nullities, and that this Court erred in not so holding.
The first ground is stated in the petition as follows:
"The Supreme Court in the opinion rendered on January 22, 1948, correctly finds: *Page 148
"That the district court of Walsh County presided over by the Honorable Harold P. Thomson, at Grafton, North Dakota, on the 31st day of October, 1947, had no jurisdiction to hear or deterimne the issues between the State of North Dakota, plaintiff, and Leonard Maresch, defendant, and yet, it also finds that, once the Honorable Harold P. Thomson took jurisdiction, erroneously and without authority of law, the fact of the sentencing of Leonard Maresch for the crime of second-degree manslaughter cannot be undone nor can anyone question that act except the defendant himself."
The ground thus asserted is predicated upon an erroneous premise. This Court did not hold "that the district court of Walsh County presided over by the Honorable Harold P. Thomson, at Grafton, North Dakota, on the 31st day of October, 1947, had no jurisdiction to hear or determine the issues between the State of North Dakota, plaintiff, and Leonard Maresch, defendant." On the contrary in the former opinion we held that though the acts of Judge Thomson "in accepting the plea of guilty and pronouncing sentence and judgment upon the defendant," Leonard Maresch, were erroneous and the judgment of conviction voidable, that such action and judgment were not void, and "may not be attacked collaterally and are not reviewable except at the instance or upon consent of the defendant." It is true, as stated in the petition for rehearing, that we said in the former opinion: —
"When a judge is designated by the order of the Supreme Court to act as judge in a criminal action in which an affidavit of prejudice has been filed, the case in which such judge is designated is in effect set aside from other cases pending in that court and the case is specifically assigned to the judge designated for disposition and he alone is properly authorized to act as judge or to perform any judicial act in the case while the order is in effect and any judicial action by a judge other than the one so designated is erroneous."
The words "authorize" and "authorized" have different meanings dependent upon the connection and circumstances of their use. The word "authorize" may mean to invest with legal power *Page 149 to act, or it may mean to permit, to afford just ground for, to justify, to give warrant for. See, Funk and Wagnall's New International Dictionary of the English Language and Webster's New International Dictionary, Second Edition; 7 CJS pp 1292-1293. As applied to the action of a judge or a court the words "authorize" and "authorized" may mean the legal power or jurisdiction conferred by law upon the judge or court, or they may have reference to the duty of the judge or court in the exercise of power or jurisdiction. See, Fauntleroy v. Lum,210 U.S. 230, 235, 52 L ed 1039, 1041, 28 S. Ct. 641. When it is said that a judge or a court is not or was not "authorized" to make some ruling or decision, — in this latter sense, — the idea intended to be conveyed is that it would be or was erroneous for the judge or court to exercise the judicial power vested in the judge or court in the particular way or under the particular circumstances and that the exercise by the judge or court of such powers in the particular manner or circumstances was an irregular or erroneous exercise thereof rendering the action subject to reversal when properly challenged in an appellate court, but "binding until reversed and set aside in some proper way." Harrigin v. Gilchrist, 121 Wis at p 230, 99 NW at p 934. The words "does not authorize" were used in this latter sense by the Supreme Court of Wisconsin in Allen v. State, 85 Wis. 22, 54 N.W. 999. In that case the defendant was charged with murder, and under the charge made in the information he might have been found guilty of murder in the first, second, or the third degree. The jury returned a general verdict finding him guilty as charged in the information without specifying the degree. Motions in arrest of judgment and for a new trial were overruled and exceptions taken, and the defendant was sentenced to imprisonment for life, — the imprisonment prescribed and authorized only for murder in the first degree. The case was brought before the Supreme Court of Wisconsin by writ of error. That Court held that, "A general verdict of guilty upon an information under which the defendant may properly be convicted of murder in the first, second, or third degree, does not authorize the court to pronounce judgment," (Syllabus, Paragraph 1, 85 Wis p 22), and ordered that *Page 150 the judgment of conviction be reversed and the cause remanded for a new trial. Later, in the case of In Re Eckart, 85 Wis. 681,56 N.W. 375, (decided about five months later), involving precisely the same state of facts the defendant in a criminal action against whom a similar verdict had been returned and a similar sentence had been pronounced challenged the validity of the judgment of conviction by writ of habeas corpus. The Supreme Court of Wisconsin held that the judgment was not void or subject to collateral attack and denied the writ. Thereafter the defendant applied to the Supreme Court of the United States for a writ of habeas corpus and that Court reached the same conclusion as had been reached by the Supreme Court of Wisconsin and held that the judgment of conviction was erroneous and voidable, but not void. In the decision in the case the Supreme Court of the United States used the following pertinent language:
"In its decision refusing the writ applied for by Eckart, the supreme court of Wisconsin held that while the conviction under the sentence in question was erroneous, the error in passing sentence was not a jurisdictional defect and the judgment was therefore not void. In this view we concur. The court had jurisdiction of the offense charged and of the person of the accused. The verdict clearly did not acquit him of the crime with which he was charged, but found that he had committed an offense embraced within the accusation upon which he was tried. It was within the jurisdiction of the trial judge to pass upon the sufficiency of the verdict and to construe its legal meaning, and if in so doing he erred, and held the verdict to be sufficiently certain to authorize the imposition of punishment for the highest grade of the offense charged, it was an error committed in the exercise of jurisdiction, and one which does not present a jurisdictional defect, remediable by the writ of habeas corpus. . . .
"The case of Ex parte Bigelow determined that the action of a trial court in overruling a plea of former jeopardy could not be reviewed on habeas corpus. In the course of the opinion, the court said (p. 330 (1006)):
"`The trial court had jurisdiction of the offense described in *Page 151 the indictment on which the prisoner was tried. It had jurisdiction of the prisoner, who was properly brought before the court. It had jurisdiction to hear and to decide upon the defenses offered by him. The matter now presented was one of those defenses. Whether it was a sufficient defense was a matter of law on which that court must pass so far as it was purely a question of law, and on which the jury, under the instructions of the court, must pass, if we can suppose any of the facts were such as required submission to the jury. If the question had been one of former acquittal, a much stronger case than this, the court would have had jurisdiction to decide upon the record whether there had been a former acquittal for the same offense, and if the identity of the offense were in dispute it might be necessary, on such a plea, to submit that question to the jury on the issue raised by the plea. The same principle would apply to a plea of a former conviction. Clearly, in these cases the court not only has jurisdiction to try and decide the question raised, but it is its imperative duty to do so. If the court makes a mistake on such trial it is error which may be corrected by the usual modes of correcting such errors, but that the court had jurisdiction to decide upon the matter raised by the plea, both as matter of law and of fact, cannot be doubted. . . . It may be confessed that it is not always very easy to determine what matters go to the jurisdiction of a court so as to make its action, when erroneous, a nullity. But the general rule is that when the court has jurisdiction by law of the offense charged, and of the party who is so charged, its judgments are not nullities.'" Re Eckart, 166 U.S. 481-485, 41 L ed 1085, 1086-1087,17 S. Ct. 638.
It is by no means true that every unauthorized action of a court, — even action which the law says shall not be taken, — affects the jurisdiction of the court and renders the action void. If the unauthorized action is one not within the court's jurisdiction, — i.e. if the court has no power to inquire into the facts, to apply the law, and render decision, — then the action is void; but if the erroneous and unauthorized action of the court is one in the exercise of the court's power, then the action is not void, but is merely erroneous and voidable. *Page 152
"Any error of law committed by the trial court (in the exercise of its jurisdiction) though serious and fundamental to rights of parties, is not the equivalent either of excess or want of jurisdiction." Rock Springs Coal Mining Company v. Black Diamond Coal Co., 39 Wyo. 379, 272 P. 12.
"If court merely applies wrong rule of law to situation presented, it is not acting without jurisdiction, but in erroneous exercise of its jurisdiction." Artman, et al. v. Artman, 111 Conn. 124, 149 A at p 247, Syllabus, Paragraph 8.
In Fauntleroy v. Lum, 210 U.S. 230, 52 L ed 1039, 28 S. Ct. 641, the Supreme Court of the United States had occasion to consider whether the courts of Mississippi were without jurisdiction of causes arising out of gambling transactions in futures because of the provisions of the laws of Mississippi which made dealing in futures a misdemeanor and provided that contracts of that sort, made without intent to deliver the commodity or to pay the price "shall not be enforced by any court." The Supreme Court of the United States held that the statute did not go to the jurisdiction of the court, that is, to its power to decide, but only laid down a rule "by which the court should decide." In the decision in the case the court said:
"No doubt it sometimes may be difficult to decide whether certain words in a statute are directed to jurisdiction or to merits, but the distinction between the two is plain. One goes to the power, the other only to the duty, of the court. Under the common law it is the duty of a court of general jurisdiction not to enter a judgment upon a parol promise made without consideration; but it has power to do it, and, if it does, the judgment is unimpeachable, unless reversed. . . . Whether a given statute is intended simply to establish a rule of substantive law, and thus to define the duty of the court, or is meant to limit its power, is a question of construction and common sense. When it affects a court of general jurisdiction, and deals with a matter upon which that court must pass, we naturally are slow to read ambiguous words as meaning to leave the judgment open to dispute, or as intended to do more than to fix the rule by which the court should decide. *Page 153
". . . The statute now before us seems to us only to lay down a rule of decision. The Mississippi court in which this action was brought is a court of general jurisdiction and would have to decide upon the validity of the bar, if the suit upon the award or upon the original cause of action had been brought there. The words `shall not be enforced by any court' are simply another, possibly less emphatic, way of saying that an action shall not be brought to enforce such contracts. As suggested by the counsel for the plaintiff in error, no one would say that the words of the Mississippi statute of frauds, `An action shall not be brought whereby to charge a defendant,' Code 1892, Sec 4225, go to the jurisdiction of the court. Of course it could be argued that logically they had that scope, but common sense would revolt. See 191 U.S. 375, 48 L ed 227, 24 Sup Ct Rep 92. A stronger case than the present is General Oil Co. v. Grain, 209 U.S. 211,216, ante, 754, 758, 28 Sup Ct Rep 475." 210 US at pp 234-235, 52 L ed at p 1041, 28 S. Ct. 641.
In Burnet v. Desmornes y Alvarez, 226 U.S. 145, 57 L ed 159,33 S. Ct. 63, it was contended that a statute fixing the time within which an action to claim filiation must be brought prescribed a jurisdictional condition and that the court had no power to entertain such action or render judgment therein determining the existence of the right claimed unless such action were brought within the period prescribed by the statute. The court held that the condition prescribed did not affect the jurisdiction of the court. In the decision in the case the court said:
"Whether prescription goes only to the remedy or extinguishes the right, it affects the jurisdiction no more than any other defense. When a court has general jurisdiction to try the question whether an alleged right exists, the rules that determine the existence of the right ordinarily govern the duty only of the court, not its power. Its judgment that the right is established cannot be impeached collaterally by proof that the judgment was wrong. For instance, a common-law court ought not to give judgment for the plaintiff upon a parol promise without consideration, but if it does so the judgment is not open to collateral attack. Even words in a statute that might seem to affect the *Page 154 power of the court, such as `no action shall be brought,' in the statute of frauds, are assumed without question merely to fix the law by which the court should decide, as is explained in Fauntleroy v. Lum, 210 U.S. 230, 235, 52 L ed 1039, 1041, 28 Sup Ct Rep 641." 226 U.S. 147, 57 L ed 160, 33 S. Ct. 63.
The laws of this state provide that whenever a person prosecuted for murder pleads guilty he shall designate in his plea whether he is guilty of murder in the first degree or in the second degree. NDRC 1943, Sec 12-2722. Where an information is filed charging the defendant with murder in the first degree and the defendant enters a plea that he is "guilty as charged in the information" without specifying the degree, the trial court isnot authorized to pronounce judgment upon the defendant; and if the court pronounces judgment upon the defendant for murder in the first degree, such sentence and judgment are erroneous and invalid and subject to reversal when properly challenged in the appellate court. State v. Noah, 20 N.D. 281, 124 N.W. 1121. But such judgment is not a mere nullity and may not be attacked collaterally, it is binding until reversed and set aside in some proper way. State ex rel. Smith v. Lee, 53 N.D. 86, 205 N.W. 314.
The laws of this state make it the duty of the trial court in all criminal actions to reduce all instructions to writing before they are read to the jury, unless "by consent of both parties entered in the minutes" it is agreed that oral instructions may be given, (NDRC 1943, Sec 21-30), and the trial court is notauthorized to give oral instructions in a criminal action without the consent of the defendant, and the giving of oral instructions without such consent constitutes reversible error. State v. Mitchell, 49 N.D. 726, 193 N.W. 310. But it has never been claimed that the action of the trial court in giving oral instructions in violation of such statutory requirement constitutes want or excess of jurisdiction rendering a verdict of guilty and judgment of conviction pronounced pursuant thereto void. It has been assumed without question that such action by the trial court constituted merely an erroneous exercise of jurisdiction subject to be set aside when properly challenged in the appellate court.
When a criminal action is tried to a jury it is the duty of *Page 155 the trial court to decide all questions of law which may arise in course of the trial and to instruct the jury as to the law of the case, and it is for the jury to determine all questions of fact. NDRC 1943, Sections 29-2103 and 29-2104; State v. Young, 55 N.D. 194,212 N.W. 857. And where in such case there is competent evidence reasonably tending to show that the accused is guilty of the offense charged, it is the duty of the court to submit all questions of fact to the jury for determination and the court is not authorized to advise or instruct the jury to return a verdict of acquittal. Yet, if the trial court in such case misconstrues a statute, applies the wrong rule of law, or places an erroneous construction on the evidence and as a consequence erroneously advises or instructs the jury to return a verdict of not guilty, such erroneous and unauthorized action on the part of the trial court does not constitute an act without or in excess of jurisdiction and does not render the verdict a nullity but the verdict operates as an acquittal of the defendant even though the result is that a defendant clearly guilty will go without any punishment whatsoever. Belter v. State, 178 Wis. 57, 189 N.W. 270; State v. Dillard, 225 Ia 915, 281 N.W. 842. See, also, State v. Meen, 171 Wis. 36, 176 N.W. 70; State v. Kelsey, 49 N.D. 148,190 N.W. 817.
Thus, in this case, if upon the first trial the then presiding trial judge had advised the jury to return a verdict of not guilty and if the jury had returned such verdict in accordance with the court's advice, the action of the trial court and the verdict returned would not have been acts without or in excess of jurisdiction and hence void, but such verdict would have constituted a bar to further prosecution. Belter v. State, supra; State v. Dillard, supra; State v. Kelsey, supra.
It goes without saying that a trial court is never authorized to exclude competent evidence and deprive the defendant in a criminal action of a valid defense. Yet if the trial court commits an error of law and excludes such evidence and thereby deprives the defendant of his only real defense, the erroneous action of the trial court "did not go to the jurisdiction of the trial court" (332 U.S. 181, 91 L ed 1989, 67 S. Ct. 1588), but constitutes merely an error in the exercise of jurisdiction, subject to reversal if and *Page 156 when properly challenged but binding until reversed and set aside in some proper way. Sunal v. Large, 332 U.S. 174, 91 L ed 1982,67 S. Ct. 1588.
At the time the actions of Judge Thomson in question here were had, he was presiding as judge of the District Court of Walsh County which was then in session. He was a duly elected, qualified and acting judge of such court. The District Court of Walsh County had undoubted jurisdiction in criminal cases involving the crime of murder charged to have been committed within Walsh County. If the order of this court designating Judge Hutchinson had not been in existence, there could have been no doubt that all proceedings then had were in every respect regular and valid. In short, the only objection urged against the jurisdiction of the court as then constituted and the validity of such actions then had resulting in the pronouncement of sentence and judgment of conviction upon Leonard Maresch is that another judge, namely Judge Hutchinson, had been designated by order of this Court to try the case. There is no claim that Judge Thomson was disqualified on account of any relationship to parties or interest in the action, and it is admitted that no affidavit of prejudice had ever been filed against him. So, the only question is as to the effect of the order that had been made by this court designating Judge Hutchinson as judge to try the case.
In every case brought on for trial the presiding judge is confronted at the outset with and must inquire into and determine (1) whether for any reason he is disqualified to act as a judge in the case, (48 CJS p 1079, Sec 93; Jewel Ridge Coal Corporation v. Local No. 6167, United Mine Workers of America, etc.,325 U.S. 897, 89 L ed 2007, 65 S. Ct. 1550); and (2) whether the court over which he presides has jurisdiction to entertain the cause, (21 CJS p 175, et seq.) It is true that in most cases the presiding judge probably knows whether he has had any connection with, or has any interest in, the litigation or is related to the parties, or whether he has become disqualified by virtue of any steps taken under a statute such as the filing of an affidavit of prejudice. Nevertheless the questions confront the presiding *Page 157 judge in every case. In this case it appears that Judge Thomson was familiar with what had transpired in the case; that he knew that an affidavit of prejudice had been filed against Judge Buttz, and that Judge Swenson had been designated as trial judge by order of this Court, that later such designation had been cancelled, and Judge Hutchinson had been designated by order of this Court to try the action. On October 31, 1947, the State's Attorney of Walsh County and the defendant and his counsel appeared in the District Court of Walsh County which was then in session with Judge Thomson presiding. The defendant asked permission to withdraw his plea of not guilty and to enter a plea of guilty to manslaughter in the second degree. The statute (NDRC 1943, Sec 29-1417) provides that:
"The defendant, with the consent of the court and of the state's attorney, may plead guilty of any lesser offense than that charged which is included in the offense charged in the indictment or information, or of any lesser degree of the offense charged."
When the State's Attorney of Walsh County and the defendant and his counsel appeared in the District Court of Walsh County on October 31, 1947, and the defendant asked permission to withdraw his plea of not guilty and to enter a plea of guilty to manslaughter in the second degree and the State's Attorney consented that the defendant be permitted to plead to the lesser offense, it became necessary for Judge Thomson to take some action. He could not ignore the parties. He was confronted with the question whether he was qualified to act as judge in the case and whether the court over which he presided, as then constituted, had jurisdiction of the cause and could consider and determine the questions presented. It became incumbent upon Judge Thomson to determine the effect of the order that had been made by this Court designating Judge Hutchinson as trial judge. In making such determination he was required to construe the order and the statute pursuant to which it was made. Judge Thomson construed the order as conferring exclusive authority upon Judge Hutchinson only to act as judge on the "trial" of the case, that is, on a judicial examination of the issues *Page 158 between the parties, and where the issues of fact were tried to a jury, (see State v. Hazledahl, 2 N.D. 521, 524, 52 N.W. 315,316-317, 16 LRA 150; State v. Pedie, 58 N.D. 27, 32, 224 N.W. 898,900), and he was of the view that inasmuch as a plea of guilty dispensed with such "trial" the order designating Judge Hutchinson did not operate to disqualify him from accepting a plea of guilty and pronouncing sentence and judgment. As we held in the former opinion, such decision of Judge Thomson was erroneous, and his actions in accepting the plea of guilty and pronouncing sentence and judgment were irregular and erroneous; but such "error in contruing the order and the law under which it was made or failure to conform to the order did not render the action of the trial court or of the trial judge void but rendered it merely erroneous and voidable."
In the former opinion we cited State v. Towndrow, 25 N.M. 203,180 P. 282, and quoted from the syllabus in that case. In the petition for rehearing it is asserted that the holding of this court that the actions of Judge Thomson were not void but were merely erroneous and voidable is contrary to the decision of the Supreme Court of New Mexico in State v. Towndrow. It is true that in the paragraph of the syllabus which we quoted the Supreme Court of New Mexico used the term "jurisdiction" with reference to the authority vested in the judge that has been designated by the chief justice of the Supreme Court of New Mexico to preside over the trial of a given cause, and there are certain statements in the opinion indicating that the court was of the mind that as a result of such designation a regular judge of the district was deprived of all power to act as judge in the cause and that any action by a judge other than the one so designated was void. We deemed it unnecessary to make any comment upon the language so used by the Supreme Court of New Mexico. We did not indicate any disapproval of anything that was said in the opinion nor did we indicate our approval of all that was said by the court in such opinion. We said: "In general the holding of the Supreme Court of New Mexico seems pertinent here." In the Towndrow case the Supreme Court of New Mexico held that where a district judge other than the *Page 159 regular presiding judge has been designated by the chief justice of the supreme court to preside over the trial of any given cause that it is error for the regular judge to preside over the trial of such cause and render judgment therein. We deemed this holding pertinent to the question under consideration in this proceeding. If the Supreme Court of New Mexico intended to hold and did hold that such erroneous action was one without or in excess of jurisdiction and consequently wholly void then, as our opinion shows, we do not agree that that would be the result under the laws of this state where a judge from another district has been designated by this court to act as trial judge in a given case in the place of a judge against whom an affidavit of prejudice has been filed and a regular judge of the court in which the action is pending (other than the one designated by this court), and against whom no affidavit of prejudice has been filed, presides over the trial with the consent of both parties.
In the opinion in the Towndrow case it is stated that the trial of the action was begun on October 12, 1916, and that on the 13th of October a temporary writ of prohibition and order to show cause was issued out of the Supreme Court prohibiting the judge who was conducting the trial from proceeding with the trial and ordering him to show cause why he should not be permanently restrained from so doing. That a hearing was had upon such writ and that "a majority of the court exercised its discretion to refuse the writ upon the ground that the jurisdictional question would be still available to the defendant in case of conviction and in view of the fact that the trial had already begun." That thereupon the trial was resumed and on October 22, 1916, a verdict of voluntary manslaughter was returned. That thereafter the defendant's motion for a new trial was overruled and the case brought to the Supreme Court on appeal. 25 NM at pp 204-205. It appears therefore that as a result of the decision of the Supreme Court on the application for a writ of prohibition the parties were required to, and did, proceed to obtain a review of the rulings which were challenged in the manner prescribed for the review of errors of law and apparently no attempt was made to attack the judgment collaterally, such *Page 160 as by habeas corpus, on the ground that the judgment was a nullity.
The order designating the trial judge in State v. Towndrow was not made pursuant to the provisions of a statute or because an affidavit of prejudice had been filed against the presiding judge. The order was made under the authority of a provision of the Constitution of New Mexico (Article 6, Section 15) which provides:
"Whenever the public business may require, the Chief Justice of the Supreme Court shall designate any district judge of the state to hold court in any district, and two or more district judges may sit in any district or county separately at the same time."
New Mexico also has a statute providing for disqualification of a judge against whom an affidavit of prejudice has been filed. New Mexico Statutes 1941, Section 19-508. The statute provides that where a party to any action or proceeding, civil or criminal, "shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard cannot according to the belief of the party to said cause making such affidavit, preside over the same with impartiality, such judge shall proceed no further therein, but another judge shall be designated for the trial of such cause either by agreement of counsel representing the respective parties or upon the failure of such counsel to agree, then such facts shall be certified to the chief justice of the Supreme Court of the state of New Mexico, and said chief justice of the Supreme Court of the state of New Mexico, shall thereupon designate the judge of some other district to try such cause."
The Supreme Court of New Mexico has held that the disqualification of a judge is accomplished when the affidavit provided for in the statute is timely filed. State ex rel. Hannah, et al. v. Armijo, 38 N.M. 73, 28 P.2d 511; State ex rel. Weltmer v. Taylor, 42 N.M. 405, 79 P.2d 937. The court also has held repeatedly that the disqualification resulting from the filing of such affidavit may be waived by the parties. (Of course, if the disqualification goes to the judge's power to act, and his acts "are absolutely void or without jurisdiction", then obviously power *Page 161 and jurisdiction cannot be conferred by waiver or consent. 48 CJS 1101, 1104. See, also, 22 CJS pp 243-244.)
In State ex rel. Lebeck v. Chavez, 45 N.M. 161, 173, 113 P.2d 179,187-188, the court said:
"We have said a good deal upon the question of disqualifying a trial judge under the provisions of this act. The law may be said to be now well settled and generally understood. . . .
"There can be no question that this disqualification, as well as the constitutional disqualification relating to kinship, interest, etc. (Sec 18, Art 6, Const), though unlike the rule prevailing in many states, may be waived. We have heretofore held that this disqualifying language used in our constitution is not absolute and the parties may waive it. State v. Gonzales, 43 N.M. 498,95 P.2d 673. See Kavanaugh et al. v. Delgado et al., 35 N.M. 141,290 P. 798; Gutierrez v. Middle Rio Grande Conservancy Dist.34 N.M. 346, 282 P. 1, 70 A.L.R. 1261; Tharp v. Massengill, 38 N.M. 58,28 P.2d 502, 510. It is obvious that disqualification for prejudice may be waived; and it is waived by implication as well as by specific acts of the party having a right to rely thereupon. See note in 5 A.L.R. 1604, citing numerous authorities. Such `disqualification resulting from the filing of an affidavit of prejudice is waived where the affidavit is withdrawn.' 30 Am Jur, Judges, par 95, 801; State v. Ham, 24 S.D. 639, 124 N.W. 955, Ann Cas 1912A 1070."
The question of waiver of disqualification resulting from the filing of an affidavit of prejudice against a judge arose and was considered again by the Supreme Court of New Mexico in State v. Garcia, 47 N.M. 319, 142 P.2d 552, 149 A.L.R. 1394. In that case the defendant was charged with murder. After having made and filed an affidavit of prejudice against the presiding judge the defendant voluntarily appeared before the judge and asked permission to withdraw his plea of not guilty and to enter a plea of guilty to murder in the second degree. The judge accepted the plea and pronounced sentence and judgement upon the defendant. Thereafter the defendant moved that the sentence and judgment be vacated and that he be afforded a trial by jury on the charge laid against him in the information. The motion *Page 162 was based upon the ground that the judge against whom the affidavit of prejudice had been filed "was without jurisdiction to preside in the case." (47 NM p 322, 142 P.2d 553). In the opinion in the case the court, after stating the pertinent facts, says:
"On these facts defendant says the resident judge was disqualified to accept the plea of guilty and sentence him. In this he is in error. As a matter of fact, the defendant himself, by asking the judge to rule upon his motion for change of venue, lost the right to disqualify the judge under the statute mentioned. State ex rel. Weltmer v. Taylor, 42 N.M. 405,79 P.2d 937; State ex rel. Lebeck v. Chavez, 45 N.M. 161, 113 P.2d 179. And, passing any question of the effect of the judge's `acceptance of disqualification' following filing of the affidavit no formal recusation by entry or otherwise having occurred, if it did operate to disqualify, the disqualification was waived when the defendant voluntarily appeared before him and asked him to accept a plea of guilty to second degree murder. The statutory disqualification may be waived, expressly or by implication. State ex rel. Lebeck v. Chavez, supra." 47 NM at p. 322, 142 P.2d at p 554.
We adhere to the former opinion. The petition for a rehearing is denied.
BURKE, J., and GRONNA, District J., concur. *Page 163