The opinion of the court was delivered by The indictment in this cause was found and returned March 13, 1895. On October 14, 1895, defendant filed, in said cause, his motion for a change of judge, the ground assigned in said motion being, "that *Page 702 the judge of said court is so biased and prejudiced against him that he cannot have a fair and impartial trial of said cause before said judge." At the same time, defendant filed his affidavit in support of said motion which affidavit was as follows:
"R. S. Cox, being duly sworn, states upon his oath that he is the defendant in the above entitled cause, and that he cannot have a fair and impartial trial before the judge of said court because of bias and prejudice existing in the mind of said judge against him."
The overruling of this motion is the only error assigned and relied upon by plaintiff in error.
Section 5138 of the Statutes of Oklahoma of 1893, as amended, Laws of 1895, p. 198, provides:
"If it be shown to the court by the affidavit of the accused that he cannot have a fair and impartial trial by reason of the bias and prejudice of the presiding judge, or that the judge has been of counsel in said cause, or is of kin to either party to the action, or is interested, a change of judge shall be ordered and the clerk of the district court shall immediately transmit to the clerk of the supreme court of the territory a certified copy of the order granting a change of judge."
By an act of congress approved December 21, 1893, it is provided:
"The supreme court of said territory, (referring to Oklahoma) or the chief justice thereof, may designate any judge to try a particular case or cases in any district when the judge of said district has been of counsel or is of kin to either party to the action, or interested, or is biased or prejudiced in the cause, or if for any other reason said judged is unable to hold court."
The only question in this case is, had the trial judge any discretion to refuse the application of the defendant for a change of judges to try said cause, and is the statute above quoted mandatory, requiring the judge to *Page 703 grant the change asked upon the filing of the affidavit? It is contended by counsel for defendant that the statute is mandatory and leaves no discretion in the judge to whom the application is presented to grant or refuse the same. The question is ably discussed by counsel both for the defendant and for the government, and numerous authorities have been cited in the briefs as sustaining the contention of either. Statutes providing for a change of judge for the reasons stated in this motion have been enacted in nearly all the states of the Union, and the adjudications are numerous; but as the question must necessarily turn upon what was the intention of the legislature in enacting the law, to be determined primarily from the language which they employed in the enactment, and as the statutes vary somewhat in the language used, the decisions are apparently somewhat conflicting. But this conflict is more apparent than real.
As the conclusion we have arrived at is not in harmony with the contention of counsel for defendant, we deem it proper to review some of the principal authorities relied on by them, and distinguish between the question as presented by those authorities and as presented in the case at bar. The leading case relied upon by counsel for defendant, and from which they have quoted at considerable length in their briefs, is the case of State v. Kent, [North Dakota], 62 N.W. Rep. 631. In that case it was held that under the statutes of North Dakota, which counsel contends is equivalent to ours, when a person on trial for a felony presents to the judge of the district in which the indictment is pending his affidavit stating that he cannot have an impartial trial by reason of the bias and prejudice of the judge, it is the *Page 704 absolute duty of such judge to call in another judge to try the case. For him to refuse to do so is error. The language of the North Dakota statute being:
"If the accused shall make an affidavit that he cannot have an impartial trial by reason of bias or prejudice of the presiding judge of the district court where the indictment is pending, the judge of such court may call any other judge of the district court to preside at said trial and do any other act with reference thereto as though he was presiding judge of said district court."
We think no other construction could have been given the statute than the one given to it by the court in that case. It must be noticed, that under the language of said statute, the right to a change of judge did not depend upon whether the presiding judge was or was not biased or prejudiced. The fact of such bias or prejudice was not to be considered as an element and therefore a question whether such prejudice did or did not exist could not be involved for decision. It was not the fact of the bias and prejudice, but the fact of making anaffidavit that determined the right to the change.
If the accused shall make an affidavit, the change shall be granted. If the statute had provided that when the defendant made an affidavit and filed the same with the clerk of the court the change should be granted, it would be equivalent to what the statute does provide. No question is by that statute submitted to the court for determination; his mind was not to be influenced or convinced; it was not to be made apparent or to be shown that he was biased or prejudiced. The right to the change depended upon the making of the affidavit, not the truthfulness of its statement or the influence of such statement upon any mind. It was, therefore, mandatory *Page 705 and no discretion was vested in the judge, for nothing was to be submitted to him for decision.
The cases of State v. Henning, 54 N.W. Rep. 536, and State v.Palmer, 57 N.W. Rep. 490, cited by counsel, were cases in which the supreme court of South Dakota construed the same statute, the statute having first been enacted by the territorial legislature of the territory of Dakota; and afterwards, on the division of the territory, and the creation of the states of North and South Dakota, adopted in exact language by the legislature of each of said states; and the court of South Dakota gives to the statute the same construction as that given by the sister state.
A statute of New Mexico, (General Stat. of N.M. Prince's Ed. 117 § 17), provides: "That the venue shall be changed in all cases both civil and criminal when the judge is interested," or when the party moving for the change shall make oath that "he cannot have justice done him in the county in which the suit is then pending, setting forth the cause of such obstruction of justice; which oath must be supported by the additional oaths of at least two disinterested persons."
It was held by the supreme court of that territory that if the proper affidavit is made by the party moving for a change of venue, and supported by the affidavits of two or more disinterested persons, such affidavits are to be considered as conclusive. (Territory of New Mexico v. Kelley, 2 N.M. 292). We think this statute is equivalent to the Dakota statute. It is the making of the oath by the defendant and by two other persons that gives the right. There, as in Dakota, nothing in the language of the statute implies that the mind of the court is to be addressed, convinced or influenced or, that the question *Page 706 of the truth of the facts stated in the affidavit is involved. The applicant and not the judge determines the change. The fact of the oath being made, and not that of the existence of prejudice or other cause being the only prerequisite to the right, and leaving no question to be determined, and therefore no discretion to be exercised.
In Rafferty v. The People, 66 Ill. 118 and Rafferty v. ThePeople, 72 Ill. 37, it is held that an application for a change of venue by one indicted for murder is not addressed to the discretion of the court, but upon a proper application being made, the prisoner is entitled to it as a matter of right. The decisions are based upon a statute that provides that when any defendant shall fear that he will not receive a fair and impartial trial on account of the prejudice of the judge, or that the minds of the inhabitants of the county are prejudiced against him, he may apply for a change of venue by a petition setting forth the cause of such application, verified by affidavit; and the court or judge shall award a change of venue. Here again the pre-requisite facts are a petition setting forth the cause and its verification by affidavits. When the verified petition is filed, the court or judge "shall award a change." This statute is equivalent to the Dakota statute already considered. There is nothing addressed to the mind of the court; no question for him to adjudicate; no discretion to exercise. The language of the statute is imperative. In Missouri the petition for a change was required to be supported by the affidavits of the two respectablewitnesses, and whenever a petition was filed, supported by such affidavits, the statute required a change of venue to be granted; and in Freleigh v. The State, 8 Mo. 606, it was held error for the court to deny a change on the ground "that it did not appear that the affiants were respectable, as *Page 707 required by law." That the word "respectable," as used in the statute, was intended to be synonymous with the word "competent," and that the act authorizing a change was imperative, whenever a case was made out in conformity with its requisitions, that is, when the petition is filed and two supporting affidavits. This is equivalent to a statute that when a defendant "shall make affidavit," and is substantially equivalent to the statutes of Dakota, New Mexico and Illinois.
The Iowa statute of 1845 was almost in the identical language of the statute of Missouri just quoted, and the court of that state, in Cass v. The State, 2 Green, 353, holds such statute to vest no discretion in the court, but to be imperative. The only cases called to our attention based upon a statute which we think approximately equivalent to our statute are those cited from the state of Indiana. Under the Revised Statute of Indiana of 1881, § 412, it is provided:
"The court in term, or judge thereof, in vacation, shall change the venue of any civil action upon the application of either party, made upon affidavit showing one or more of the following cases, * * (3) that the opposite party had an undue influence over the citizens of the county." * *
This statute we regard as substantially the same as ours, and the supreme court of that state holds it to be imperative upon the judge or court to grant the change on such affidavits, and that no counter showing can be permitted.
It is unnecessary that we should review any of the authorities cited by the government from the states of Iowa, Wisconsin or California, as the statutes of those states leave no doubt of the intent of the legislature to vest the judge of the court with a clear discretion to *Page 708 grant or refuse the application; the language of the statute of Iowa being, "In the exercise of a sound discretion and according to the very right of the matter;" and that of Wisconsin being, "and such court or judge, reasonable notice of the application having been given to the opposite party or his attorney, shall, if satisfied of the truth of the allegations, award a change of venue," etc.; and that of California being, "if the court be satisfied that the representations of the defendant be true, an order shall be made for the removal."
Under a statute, § 20, ch. 78, Laws of South Dakota, 1890, which reads: "Whenever it shall appear to the satisfaction of the court by affidavit or otherwise that a fair and impartial trial cannot be had in such court by reason of the bias and prejudice of the judge, the court shall call the judge of another county to try the case," it was held, State v. Shapman, 47 N.W. 411, that the affidavits in support of the application must state facts and circumstances from which the conclusion is deduced that a fair and impartial trial cannot be had; that the conclusion is to be drawn by the court and not by the defendant; that the court must be satisfied from the facts and circumstances sworn to in the affidavit, and not from the general conclusions to which the defendant may swear. In Kentucky it is held that it is for the county judge to determine, in the exercise of sound judicial discretion, whether by reason of kinship, etc., it would be improper for him to hear a particular case, and he cannot be compelled to vacate the bench by the affidavit of a litigant. (Byram v.Holliday, 84 Ky. 18). And in the same state, under the statute for the election of a special judge, an affidavit to the effect "that the regular judge will not afford affiant a fair and impartial trial," must show the grounds of affiant's belief and must affect *Page 709 the personal integrity of the judge. (German Ins. Co. v.Landrum, 10 [Ky.], L. Rep. 1042).
Section 56, of the civil code of Kansas, reads:
"In all cases in which it shall be made to appear to thecourt, that a fair and impartial trial cannot be had in the county where the suit is pending or where the judge is interested or has been of counsel in the case," etc.
Construing this section, Horton, C. J., in Gray v. Crocket,35 Kan. 56, says:
"If the district court had overruled the application to change the place of trial upon the affidavit presented, we would unhesitatingly pronounce the ruling eminently correct, because it seems to us that the true rule in such a case is that such facts and circumstances must be proved by affidavit or other extrinsic evidence; and unless this clearly appears a reviewing court will sustain the over-ruling of the application."
And in City of Emporia v. Volmer, 12 Kan. 622, the court, construing a statute which reads:
"When any indictment or criminal prosecution shall be pending in any district court the same shall be removed by order of such court or judge thereof to the district court of some county in a different district in either of the following cases: (1) When the judge of the court in which the cause is pending is near of kin to the defendant by blood or marriage; (2) When the offense charged is alleged to have been committed against the person or property of such judge or some person near of kin to him; (3) When the judge is anywise interested or prejudiced or shall have been of counsel in the cause."
That court says:
"It seems to us, therefore, that this is the true rule: That such facts and circumstances must be proved by affidavit or other extrinsic testimony as clearly show that there exists a prejudice on the part of the judge towards the defendant; and unless this prejudice clearly appears, a reviewing court will sustain an overruling of the application on the ground that the judge must have been *Page 710 personally conscious of the falsity or the non-existence of the grounds alleged. It is not sufficient that a prima facie case only, be shown. Such a case as would require the sustaining of a challenge to a juror; it must be strong enough to overthrow the presumption in favor of the trial judge's integrity and of the clearness of his perception."
Our summary of the authorities is that there are three classes of statutes: (1) Those like that of the territory, and the earliest statutes of the states of Dakota, and those of New Mexico, Illinois and Missouri, where the language leaves no doubt that it was the intent of the legislatures to take away all discretion from the court or judge in passing upon the question of a change of venue or of judge; (2) statutes like those of Iowa, Wisconson and California, where the language leaves no doubt of a clear intention to confer such discretion; and (3) statutes very similar to our own, like the latter statute of the state of the South Dakota, reading, "Where it is made to appear to the satisfaction of the court," or such as, "Where it is made to appear to the court," or, "Where it is proven," or as in this territory, "If it be shown to the court." In this last class, where there is room for judicial construction to determine the intent of the legislature, the weight of authority is clearly in favor of such discretion, and that the court can exercise the discretion to grant or refuse the application.
We think the words, "shown to the court" are equivalent to the words "made to appear," as used in other statutes. In Webster's International Dictionary the word "shown" is defined, "to make apparent or clear, as by evidence, testimony or reasoning; to prove." In Coyle v. Commonwealth, 104 Penn. St. 133, "to show" is said to mean "to make apparent or clear by evidence; *Page 711 to prove." Independent of the authorities, we must give effect to the intent of the legislature, if such intent can be reasonably ascertained. To ascertain such intent, we look not only to the language of the enactment, if there be any ambiguity, but to the condition upon which it was to operate, the evil that existed and the reasonableness of the remedy intended to be applied. Construed in these lights, we cannot conclude otherwise than that the legislature did not intend to arm those accused of crime with means by their own will and act alone, to hinder, delay, obstruct or prevent the administration of justice; or that they should be offered the reward of immunity from punishment for crime, merely by the commission of another crime. We have shown that the language of this statute, neither from the definition of its language by approved authority or the construction given to similar statutes, bears out the contention of the defendant. We must assume that the legislature, when enacting it, had knowledge that it might be used, if the contention of defendant is to prevail as to its meaning, to prevent a fair and impartial administration of justice rather than to secure the same; and can it be that the legislature intended that one accused of crime should secure delay, or perhaps prevent a trial entirely, simply by filing an affidavit setting up a conclusion that might be false and that might be known by the judge to be false, and that that judge, sworn to see that the laws were faithfully, fairly and impartially administered, should be compelled to sit upon the bench, knowing such affidavit to be false, and yet be compelled to give it the effect he would though it were true. Did the legislature intend that any person accused of crime, though never so notorious a criminal, when brought to trial and when applications for a continuance and all other dilatory *Page 712 proceedings, so familiar and so often used in the defense of criminal actions had failed, might, by simply making an affidavit that the judge of the court was of kin to him, though he might be of the Mongolian or African race, secure that which he had failed to secure by his other dilatory proceedings, perhaps absolute immunity from justice, and that such affidavit should outweigh and even impugn the integrity of the sworn judge of the court. We do not think this was contemplated by the legislature. We believe the legislature, when framing this statute, was familiar with the geographical and physical conditions of this territory; that they appreciated that courts were being held at a distance of one hundred and fifty miles from any railroad; that the judges were separated by long distances; that they were all engaged at the same season in conducting trial courts; that a change of judge meant not only a continuance of the cause for the term but perhaps for many terms, before the convenience of public business would permit another judge to take the place of the one thus deposed. That practically in that it would have been better had they enacted that, upon the filing of such affidavit, the county attorney should enter a nolle prosequi in the cause. Was such statute thus construed needed to remedy any evil that existed? True, judges may be of kin to an accused; they may be interested; they may be prejudiced and biased. It if a remedy for all this that if the accused may make affidavit that the judge is prejudiced or biased, and set forth in his affidavit, not a conclusion but facts, from which it would be naturally and reasonably inferred that bias or prejudice existed, and if his application was overruled, then upon appeal, the supreme court, having before it the facts upon which the trial court acted, could correct the error, if any, committed by such trial court. *Page 713 This we think the true interpretation of this statute which interpretation we derive from the language of the act, from the evil that may have existed; from the reasonableness of this remedy for such evil, from the conditions surrounding the legislature and their knowledge of those conditions when enacted, and from the weight of authorities construing similar enactments.
If this was not the interpretation that was intended by the legislature to be given this statute, they would have employed language, the natural interpretation of which would have shown a different intent, and until the language of the statute is changed, to show such different intent, we must hold that the trial judge is vested with discretion to grant or refuse such application.
The judgment of the court below is therefore affirmed.
Dale, C. J., having presided in the court below, not sitting; Bierer, J., and McAtee, J., concurring; Keaton, J., dissenting.
Dissenting opinion by