First. Can the state in a criminal case disqualify a trial judge upon the ground that he is so biased in favor of the defendant that the state cannot secure a fair and impartial trial of said cause before said judge? It is contended by the state and conceded by the respondent that a defendant in a criminal action has no right to insist that he be tried before a judge prejudiced in his favor, or before any particular judge, and that no rights of a defendant are invalidated by the substitution of a judge impartial as between him and the *Page 46 state. We think this states a sound principle of law, which is in harmony with the Constitution and statutes of this state. Our Constitution is as follows:
"The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay or prejudice." (Williams' Ann. Const. sec. 14, p. 10.)
There can be no question but that the Legislature has the power to mark out the means, manner, and time as to the determination whether prejudice exists in any given case. See footnotes to Williams' Ann. Const. sec. 14, p. 10.
Our statute with reference to the disqualification of trial judges is as follows:
"No judge of any court of record shall sit in any cause or proceeding in which he may be interested, or in the result of which he may be interested or related to any party to said cause within the fourth degree of consanguinity or affinity, or which he has been of counsel for either side, or in which is called in question the validity of any judgment or proceeding in which he was counsel or interested, or the validity of any instrument or paper prepared or signed by him as counsel or attorney, without the consent of the parties to said action entered of record: Provided, that the disqualifications herein imposed shall not exclude the disqualifications at common law." (Section 2012, Comp. Laws 1909.)
"In any cause, civil or criminal, pending in any court of record, in this state, if the presiding judge for any legal cause, shall be incompetent or disqualified to try, hear, or render judgment in such cause, the parties or their attorneys of record, if it be a civil cause, or the prosecuting officer and the defendant or defendants or their attorneys of record, if it be a criminal cause, may agree upon some member of the bar of the district who is not disqualified, if it be in the district court, or of the county, if it be in the county or superior court, and if in any other court of record within its jurisdiction, to act as a special judge to hear and decide and render judgment in the same manner and to the same effect as such disqualified judge could have rendered but for his disqualification." (Section 2013, Comp. Laws 1909.)
The fact that the prejudice of a trial judge is not mentioned in either of these sections as a ground for disqualification is *Page 47 immaterial, because it is embodied in the Constitution itself. We are required to construe our statutes liberally and in connection with the Constitution. See authorities cited in Williams' Ann. Const. sec. 14, p. 10. As is well said in the brief of counsel for petitioner:
"This provision of the Constitution was held by this court inEx parte Hudson, 3 Okla. Cr. 393, 106 P. 540, 107 P. 735, to guarantee to a defendant in a criminal action a trial before an unprejudiced judge, and to be self-executing, so that he could not be deprived of such right by neglect of the Legislature to provide a remedy for its enforcement. So, in the case cited, it was held that, bias and prejudice of the judge against the defendant having been shown, mandamus would lie from this court to such judge commanding him to certify to his disqualification. There is nothing in the language or spirit of this constitutional guaranty limiting it to either party to an action, or excluding the state from the same right to a trial before an unprejudiced judge which it accords the defendant in a criminal action. It is a guaranty of the administration to the people of justice without prejudice, not only in those actions in which they seek to enforce their private rights and individual rights, but also in those brought by them for the enforcement of their associate and collective rights as a body politic. The latter are just as important to them as the former, and so intimately correlated with them that the violation of the public right usually involves the violation of a private right, which can be adequately protected only by due enforcement of a public right. For example, the commission of a murder, which is the crime involved in this case, is the violation of a public right — that is, of the peace and dignity of the state — and at the same time a violation of the most sacred private right, namely, the right of a personal security. This private right could not be adequately protected by a private action against the murderer, which would only result in a money judgment, and therefore have but little deterrent effect on persons murderously inclined. The effective preventative cause, and safeguard of personal security, is simply the severer penalty inflicted in a public action by the state; and such prevention is the prime purpose of criminal punishment. This is illustrated in Rhode Island, where the Legislature, after abolishing capital punishment, found it necessary to restore it, owing to the marked increase in murders. As the private right of personal security can therefore be protected only by actions to vindicate the public right, it is of as much importance to the people as that justice should be administered *Page 48 without prejudice to them in their purely private individual actions. Both are included in the constitutional guaranty. So, in an action by the people to enforce their collective rights as a state, in a prosecution for murder, they have the same right as the defendant to a trial before an unprejudiced judge, which, under the self-executing provision of the constitutional guaranty, the courts are bound to enforce."
We are of the opinion that the state has just as much right to have its cases tried before an unprejudiced judge as a defendant has, and that the state can object to the trial of any of its cases before a disqualified judge.
Second. The next question is as to whether or not this court has the authority, upon a petition of the state, to issue a writ of mandamus disqualifying a judge from trying a criminal case. Section 187 of Williams' Ann. Const. is as follows:
"The appellate jurisdiction of the Supreme Court shall be coextensive with the state, and shall extend to all civil cases at law and in equity, and to all criminal cases until a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases shall be established by law."
Exclusive jurisdiction cannot be divided, but must be confined solely and entirely to the court upon which it is conferred. Exclusive appellate jurisdiction of criminal cases means that this court alone has the power to review and correct any and all errors committed in criminal cases by the trial court. If any other court shares such power with this court, our jurisdiction would not be exclusive, and it would necessarily result in conflicts and confusion, and would thereby destroy the unified and harmonious enforcement of criminal law in Oklahoma. It requires no argument to show that this view is just and correct. It is sustained by the Supreme Court of the state in the case of State ex rel. Ikard v. Russell, 33 Okla. 141,124 P. 1092, and the same doctrine was reaffirmed in the case of Exparte Anderson, 33 Okla. 216, 124 P. 980. See, also, Ex parteRiggert, 33 Okla. 303, 125 P. 485.
Our statute on this subject is as follows:
"The Criminal Court of Appeals shall have exclusive appellate jurisdiction in all criminal cases appealed from county and district courts in this state, and such other courts as may be *Page 49 established by law. The appellate and original jurisdiction of the Criminal Court of Appeals shall be invoked in the manner prescribed by law." (Section 1916, Comp. Laws 1909.)
"Said court and judges thereof shall have the power to issue writs of habeas corpus, and under such regulations as may be prescribed by law, issue such writs as may be necessary to exercise its jurisdiction, and may prescribe and promulgate such rules for the government of said court as it may deem necessary. (Section 1918, Comp. Laws 1909.)
"Said court shall have power, upon affidavit or otherwise, to ascertain such matters of facts as may be necessary to the exercise of its jurisdiction." (Section 1919, Comp. Laws 1909.)
Section 2016, Comp. Laws 1909, is as follows:
"Any party to any cause pending in a court of record may in term time or in vacation file a written application with the clerk of the court, setting forth the grounds or facts upon which the claim is made that the judge is disqualified, and request him to so certify, after reasonable notice to the other side, same to be presented to such judge, and upon his failure so to do within three days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do."
Section 6947, Comp. Laws 1909, is as follows:
"Appeals to the Supreme Court (Criminal Court of Appeals) may be taken by the state in the following cases and no other: 1. Upon judgment for the defendant on quashing or setting aside an indictment or information. 2. Upon an order of the court arresting the judgment. 3. Upon a question reserved by the state."
The right of the state to take an appeal in a criminal case has been twice sustained by this court. See State v. Clifton,2 Okla. Cr. 189, 100 P. 1124, and State v. Pollock,5 Okla. Cr. 26, 113 P. 207. It is therefore not necessary to discuss this question again. The statute in express terms gives the state the right to reserve any question arising in a criminal case, and when said cause is determined the state can bring such question up by appeal to this court for review. If a motion to disqualify a judge is made by the state and denied by the trial judge, and the defendant should be tried and acquitted, and if the state has reserved such question for appeal, it could be brought up and passed upon by this court, and the questions of law therein involved could be *Page 50 settled. The fact that the defendant may have been acquitted and could not be tried again for the same offense would not interfere with the right of the state to appeal and have the question so reserved settled. Any other construction would render the third paragraph of section 6947 meaningless and nugatory. We therefore hold that this court has the power and that it is its duty to consider a petition for a writ of mandamus upon motion of the state to disqualify a judge from trying a criminal case.
Third. When this case was tried, a great deal of evidence was received, without objection from either party, which, under the rules of law, was not admissible. Without deciding as to whether or not prejudice against an attorney would legally disqualify a judge from trying a case in which such attorney was employed, we do not think that such a showing has been made as to authorize us to disqualify respondent upon this ground. The strongest evidence on this question is a newspaper publication, which contains some indiscreet remarks alleged to have been made by counsel for defendant Jeffries with reference to the feeling of respondent toward the county attorney. This attorney was a witness upon this hearing, and did not deny the publication attributed to him. We do not think respondent is in any manner responsible for this publication, or for these remarks, and we trust that experience will teach the attorney who is reported to have used this language the impropriety of trying his cases in newspapers. Such publications invariably do more harm than good to the person in whose interests they are made. In this case they have subjected the judge to criticism and have not at all benefited the defendant Jeffries, because they were calculated to and did create the impression that Jeffries and his said attorney were largely depending upon the hostility of the trial judge toward the county attorney. This was unjust to and injured a number of persons, one of whom was the defendant Jeffries himself. Lawyers should exercise some discretion about what they say, and especially about what they put in print. We think that respondent acted indiscreetly in visiting defendant Jeffries in the county jail, yet we also think that this arose from *Page 51 goodness of heart upon his part rather than from any desire to favor the defendant Jeffries.
There is one circumstance which to our minds entirely negatives and overthrows the idea that respondent was colluding with counsel for defendant Jeffries to favor him in the trial of his case. Respondent had the power to admit Jeffries to bail, yet when a petition for habeas corpus was presented to him, and after he had considered the same, he suggested to counsel for Jeffries that the petition be withdrawn and presented to this court for action. If there was any collusion on the part of respondent and Jeffries and his attorney, as the publication made by the attorney of Jeffries would indicate, and if respondent desired to favor Jeffries, there was nothing to have kept him from admitting Jeffries to bail. It is much more difficult for lawyers to understand judges than it is for judges to understand lawyers, because all judges have acted in both capacities. No man can be a good trial lawyer unless he becomes so imbued with the justice of his case as to make him a partisan. We see this illustrated in the person of the county attorney of Nowata county. We commend the ability, zeal, and courage with which he prosecutes violators of law in his county, and under the testimony in this case we can well see how he may have misconstrued and misunderstood the conduct of the trial judge. A judge should never be a partisan. He should endeavor to treat both sides with equal fairness and impartiality. Whenever a judge becomes a partisan, his usefulness on the bench is at an end.
From a careful consideration of the entire record in this case, we have reached the conclusion that the county attorney and the respondent have both acted in good faith, and that each one has been animated alone by a conscientious desire to do his duty, and that the trouble existing between them grows out of their different temperaments and viewpoints. The evidence shows that the defendant Jeffries has been granted a great many privileges by the sheriff of Nowata county, not authorized by law or by order of respondent. We take advantage of this occasion to say to the sheriffs of Oklahoma that the law has provided county jails as the places of confinement for prisoners committed *Page 52 to their custody, and that they have no right to keep them anywhere else, or allow them to be at liberty, except on special order of a court of competent jurisdiction. Any sheriff who does not obey the law in this respect should be removed from office, and should also be visited with severe penalties. The man who is not willing to obey the law should not hold the office of sheriff, or any other public office. He has no right to have pets or favorites, or extend any liberties or privileges to one prisoner which the law does not extend to all prisoners; and we suggest to the various trial judges and county attorneys of Oklahoma that they admonish their several sheriffs as to this matter, and, if they find any carelessness of this sort, that they take such action as will secure respect for and obedience to law, for in this manner only can the interests of society be protected.
Considering the evidence in this case as a whole, we do not think that we would be justified in holding that respondent was disqualified to sit in the trial of this case. The writ of mandamus is therefore denied.
ARMSTRONG and DOYLE, JJ., concur.