Argued November 8; affirmed December 10, 1935. ON THE MERITS (52 P.2d 186) Department 1. Defendant, being convicted of rape, appeals.
At the oral argument, the district attorney moved for a dismissal of defendant's appeal on the ground that no brief, bill of exceptions or transcript of testimony had been filed. No assignment of error was made until said oral argument, at which time a typewritten assignment was presented and filed. The question of the sufficiency of the indictment and of the verdict to sustain the judgment may be tested by such a record as we have in the instant case; hence, the motion for dismissal must be overruled and it is so ordered.
But one assignment of error is presented here, and that is to the effect that in denying defendant's request for another judge to preside at his trial the court committed error.
Defendant was arraigned and entered a plea of not guilty on Monday, January 21, 1935. Thereafter, a letter, bearing date January 23, 1935, written by defendant and addressed to the trial judge, was brought *Page 13 to the trial judge. Omitting its formal parts, the contents of the letter are as follows:
"Beliveing yourself to be prejudicial to myself and beliveing it to be in all fairness to justice and myself, I hereby request that I be granted a change and have a judge other than yourself to preside at my comeing trial and that the appointment of an attorney be left to the judge who may be appointed to preside at said trial."
On the 9th day of February, 1935, defendant made and filed herein an affidavit referring to said letter, stating that the sheriff informed defendant that he, the sheriff, had delivered said letter to the trial judge on said 23d day of January, 1935; that on the 24th day of January, 1935, the district attorney informed defendant that the court had refused defendant's request; and on the 25th day of January, 1935, defendant was taken into court and notified by the judge that defendant's request had been refused. Said affidavit of defendant concludes as follows:
"That the court denied my request but that no written order has been entered in regard thereto and at this time I wish to have my request actually filed as to indictment numbered 1. That I believe the Hon. H.K. Zimmerman is prejudiced against me and that I believe that I cannot have a fair and impartial trial before him."
On said 9th day of February, 1935, an order was made denying defendant's request for a change of judge.
The statute, in effect, when defendant's affidavit for change of judge was filed, provided that:
"Any party to or any attorney appearing in any action, suit or proceeding in a circuit court may establish such prejudice by motion supported by affidavit that the judge before whom the action or suit is pending is prejudiced against such party or attorney, so *Page 14 that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge, and that it is made in good faith and not for the purpose of delay, and shall be filed with such motion at any time prior thereto or within one day after such action, suit or proceeding is at issue upon a question of fact, or such further time as the court may allow, and not otherwise, * * *." Section 1-406, Oregon Code 1930, as amended by Oregon Laws 1933, Chap. 375, p. 595.
It would be an unwarranted construction to hold that the letter above quoted constitutes a motion. It does not bear the title of any cause. When it was transmitted to the trial judge, it was unattended by any affidavit. The affidavit of February 9, 1935, does not comply with the above quoted section of the statute in that it fails to state "that it is made in good faith and not for the purpose of delay".
Moreover, neither the letter nor the affidavit was filed prior to or within one day after issue was joined by the plea of not guilty. From the affidavit, it appears that there were two or more indictments pending against defendant and, until the statement was made in his affidavit that defendant desired the letter filed as to indictment numbered 1, the clerk doubtless was at a loss to know to which case the defendant desired it to apply.
In this state of the record, we cannot say that reversible error was committed by the trial court in denying defendant's request for a change of judge.
The judgment of the circuit court is affirmed. *Page 15