On January 13, 1948, defendant Howard S. Byington, was convicted of second degree perjury and sentenced to one year imprisonment in the county jail from which judgment and sentence he appeals. The matter grew out of a hearing held on December 8, 1947 on an order to show cause why he should not be punished for contempt in failing to pay alimony and support money according to a decree of divorce previously entered against him on May 9, 1947.
Although both the court and opposing counsel suggested to defendant that he get counsel, defendant proceeded in such hearing without an attorney. After his former wife had testified, the court told defendant he could cross-examine her and when he declined the court told him that he could take the witness stand in his own behalf. This he also refused. Thereupon the court said,
"Well come up here. I want to ask you some questions then."
After he was sworn the court asked opposing counsel to examine him. In the course of this examination, defendant testified that he had remarried but did not remember the date or the place thereof but said that it was about a month ago and somewhere in Montana. Thereupon the judge asked whether he had a license and a marriage certificate. He answered that he did have them but not with him. On further questioning by the court, he said that his wife was home, whereupon the court adjourned that hearing and ordered him to go to his home with the sheriff and get his wife. When the sheriff and defendant returned with Ivella Hutchison, the woman to whom defendant claimed he was married, she was sworn and both she and defendant each *Page 391 testified that they were married but they were very uncertain as to the time and place thereof.
Thereupon the court found defendant guilty of contempt and committed him to the county jail for 30 days and ordered the county and district attorneys to investigate the matter of violation of the criminal laws. The defendant and Miss Hutchison were then taken to the sheriff's office and questioned by the county attorney where they reiterated their testimony in greater detail. A few days later both of them admitted that they had never been married to each other, and signed a written statement to that effect. In this statement they explained that for some time they had been openly living together as man and wife and as a result thereof they had a child two or three months old; that they had intended to be married and had on that account falsely testified that they were married. Thereafter, they were separately charged and convicted of perjury. They were actually married prior to the trial.
At the defendant's trial on the perjury charge, the court received in evidence over his objection, the transcript of his testimony in the hearing on the order to show cause to the effect that he was married to Miss Hutchison; also his signed statement that he had so testified. Defendant contends that under these circumstances by the use of this evidence, he was compelled to be a witness and give evidence against himself in a criminal case in violation of the 5th Amendment to the Federal Constitution and of Article 1, Section 12 of our State Constitution.
It is generally recognized that the privilege against self-incrimination provided for in those constitutional provisions protects a witness as well as a party accused of crime in a civil as well as in a criminal action from being required to give testimony which tends to incriminate 1 him. It is further generally recognized that any fact which is "a necessary or essential part of a crime" if testified to by a witness would tend to incriminate him. The quotation *Page 392 is from Marshall, in Aaron Burr's Trial, Robertson's Rep. I, 208, 244. See 4 Wigmore on Evidence, Sections 2260 to 2268. For a thorough discussion of the entire question see Id. Sections 2250 to 2283.
Generally such question is raised on objection to giving of testimony but that is not necessarily the case. Here the witness did not claim the privilege when the question was asked. But he did decline to testify and testified only when required to do so by the court. He was a layman without 2 experience with courts, without advice of counsel or knowledge of his right to refuse to give self-incriminating testimony. When he was asked whether he had remarried he was openly and notoriously living as husband and wife with this woman who was not his wife and a child had been born from that relationship. Not being married to her he was guilty of fornication. When this question was put to him he was required to either refuse to answer or to admit one of the elements of such crime or give false testimony. Since he did not know that he had the right to refuse to answer his only alternative was to admit his guilt or give false testimony. That persons shall not be placed in such a position is one of the purposes of these constitutional provisions. Under such circumstances such evidence is not admissible in a subsequest prosecution for perjury otherwise the immunity from giving self-incriminating testimony would be of no value to him.
That such evidence under these circumstances is inadmissable was held in State v. Caperton, 276 Mo. 314, 207 S.W. 795. There the defendant was required to give testimony before a grand jury which was investigating whether he was living with a woman not his wife, in open and notorious adultery, without any warning of his immunity from giving self-incriminating evidence. He testified that he was married to the woman but was later convicted of perjury in so testifying. The court set aside this conviction on the ground that evidence of his testimony before the grand jury was not admissible in such prosecution because *Page 393 his immunity from giving self-incriminating evidence would thereby be violated. The court said:
"As a basis for this prosecution defendant was haled before a grand jury of his county, and there under oath compelled to answer certain questions, truthful answers to which would (as the state is now here insisting) have required a confession of his guilt of another crime then under investigation by this jury. When defendant was thus compelled by these proceedings before the grand jury, either to `confess and be hanged' or to swear a lie, he took refuge (again, as the state now here contends) in the latter alternative. Promptly he was indicted for perjury, and this prosecution and conviction followed.
"It is plain to be seen that the inquisition whereat the alleged perjury was committed was in a most serious aspect a violation of defendant's constitutional right not to be compelled to testify against himself. Section 23, art. 2, Const. [Mo. R.S.A.]; State v. Young, 119 Mo. 495, 24 S.W. 1038; State v. Faulkner, 175 Mo. 546, 75 S.W. 116; State v. Thornton,245 Mo. 436, 150 S.W. 1048. The least that may be said of the proceedings by which this defendant was induced to perjure himself is that the state, in thus compelling either a sworn confession or perjury, was morally an aider and abettor in the perjury charged.
"The law which governs inquisitions before grand juries does not contemplate that an accused person, whose alleged crimes are at the time the subject of inquiry may be compelled to come before such a jury and there in secret and on oath, without counsel or friends be required either to confess his guilt or to commit perjury. State v. Thornton, 245 Mo. loc. cit. 440,150 S.W. 1048. No objection was made that defendant's testimony before the grand jury, being involuntary, was inadmissible, but so much is said in palliation of defendant's guilt, if in fact he be guilty, and in criticism of the proceeding adopted to compel him to commit the crime herein complained of."
To the same effect is Twiggs v. State, Tex.Cr.R., 75 S.W. 531. There defendant was convicted of perjury before a grand jury which was investigating a charge of rape against another man. In the course of his testimony, he denied having committed adultry with a sister of the woman involved in the rape charge, of which offense he was later convicted. The court held that the testimony given before the grand jury was not admissible in evidence on his trial for perjury, because he was denied his privilege to not give *Page 394 incriminating evidence against himself, even though he did not claim such privilege.
Here the testimony was not given in the course of an investigation against him for a criminal offense as in theCaperton case, supra. But the constitutional provisions grant the immunity from giving such testimony in a criminal case and under that provision, even though he first gave such testimony in a civil action, evidence thereof may not be used against him in a criminal case. See references to Wigmore above cited. Under the circumstances of this case, he was compeled to answer questions which, if answered truthfully, he would have to give evidence of one element of a crime which he had committed. Here, as in the two cases above cited, he did not object to answering but he did not know that he had a right to make such objection. If such testimony can be used against him in a case of this kind then his privilege against self-incrimination may be violated and he can still be convicted as a result of such violation by the court. Such was not the intention of the framers of our Constitutions.
In so holding, we do not blame the court for asking these questions. Since he was in contempt, if he were a married man the amount of punishment might well be less than if he were a single man. But the fact that it was proper to ask those questions does not make his false answer admissible in a later prosecution for perjury.
The court also erred in refusing to disqualify himself because of bias and prejudice. In Haslam v. Morrison, 113 Utah 14,190 P.2d 520, 523, we held that bias and prejudice for or against a party to a suit is grounds for disqualification, but that the mere filing of an affidavit to that effect 3-6 does not establish the disqualification of a district judge. The judge in the first instance may pass on his own qualification and his decision on that point is subject to review by this court, and where the application for a change is made in bad faith it is the duty of a district *Page 395 judge who is not biased or prejudiced to refuse to disqualify himself.
The Haslam v. Morrison case and the instant case are so different in their facts that the decision in that case is not controlling here. That case was a civil action while this one is criminal. Not only is a litigant entitled to have his case tried by an impartial and unbiased judge, but 7 when, as here, he is a defendant in a criminal case, he is entitled to have the severity of his sentence determined by a jurist who has no personal bias or prejudice toward him as a defendant. In this action, the defendant was convicted of a crime which is punishable by imprisonment in the county jail for not more than one year or by a fine of $500 or by both fine and imprisonment. A judge who had not instigated the prosecution of this offense might have considered imposing a lesser sentence than the maximum; or he might have even given consideration to suspending the execution of the sentence. While these are privileges that are considered after conviction, they are part of our criminal procedure and are important to a defendant, particularly in a case where the offense is committed largely from legal coercion.
In the case of Haslam v. Morrison, supra, Mr. Justice Wolfe, speaking for this court, said:
"The general practice in this jurisdiction has been for judges to disqualify themselves whenever an affidavit of bias and prejudice against them has been filed. As a general rule, we think this is a commendable practice. The purity and integrity of the judicial process ought to be protected against any taint of suspicion to the end that the public and litigants may have the highest confidence in the integrity and fairness of the courts. This is not to say that the mere filing of an affidavit of bias and prejudice, ipso facto casts such suspicion on the judge, and upon his integrity and fairness, that he ought to disqualify himself. However, it is ordinarily better for a judge to disqualify himself even though he may be entirely free of bias and prejudice. If either litigant files an affidavit of bias and prejudice. `Next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness or integrity of the judge.'Crook v. Newborg *Page 396 Son, 124 Ala. 479, 27 So. 432, 433, 82 Am.St.Rep. 190; 30 Am.Jur. 767, Judges, Sec. 53."
The foregoing quotation is more cautionary than mandatory. However, it should suggest to trial judges what this court believes to be the better practice when an affidavit of bias and prejudice is filed in good faith.
Defendant filed his motion for change of judge and supported the motion with an affidavit of bias and prejudice. The facts in this case establish that the defendant could not be charged with bad faith in seeking to have another judge hear his cause. Accordingly, there was no duty imposed on the 8 judge to hear and dispose of the perjury charge. Be that as it may, the motion was heard by the judge and overruled. Such a ruling presumes that the judge found he was not prejudiced and biased, and, under our previous holdings, unless the record establishes as a matter of law a contrary state of mind, then the ruling should be affirmed.
With these general observations as a starting point, we turn to the facts and circumstances of this particular case. The facts relied on to establish bias and prejudice on the part of the judge are contained in the transcript of the testimony given at the hearing on the order to show cause why defendant should not be punished for contempt. This hearing undoubtedly followed the course of similar hearings up to the point where the trial judge apparently concluded that the defendant in this case was not telling the truth. From this point on, the record indicates a change in the attitude of the judge. He was no longer the arbiter between two litigants. He then appears to have assumed the role as prosecutor of the defendant. After the plaintiff in the contempt hearing had concluded the presentation of her evidence, the defendant was asked by the court as to whether or not he desired to testify. He announced that he did not. However, the court ordered him to the witness stand for the purpose of interrogation. Counsel for the plaintiff was *Page 397 given the opportunity to commence the examination but, when the evidence disclosed that defendant was claiming to have re-married, the judge took over. He not only examined the defendant to determine his ability, financial or otherwise, to comply with the order of the court, but he pursued a course of examination which drove the defendant into a situation where defendant was faced with three alternatives, namely, falsify his testimony, admit the commission of a crime, or face a contempt charge for refusal to testify. The judge, being dissatisfied with the defendant's testimony concerning his marriage and apparently believing it to be untrue, concluded to immediately determine its truth or falsity. He ordered the defendant to accompany the sheriff to defendant's home for the purpose of bringing his claimed wife back to court to testify. Neither party to the contempt proceedings had requested her to appear as a witness and while a judge should seek to obtain all the essential facts necessary to properly decide an issue, he should proceed strictly in accordance with legal requirements. Orderly procedure was forgotten and the rights and competency of the witness were ignored in an effort to immediately determine the truth of defendant's story. The speed and irregularity in those proceedings are mentioned merely to emphasize the effort to literally "catch the defendant in a lie."
Aside from the summary manner in which the contempt hearing was handled, we quote some of the remarks made by the trial judge to the defendant in that hearing. While the record does not give the court room atmosphere, the hostile or friendly manner of the judge, the tone in which the remarks were made, nevertheless, the remarks clearly indicate that before the hearing was over, the trial judge was firmly convinced the defendant was guilty of perjury. The quoted statements are not preceded by the question, but they are sufficient to establish the belief of the trial judge. After the defendant announced he did not desire to testify, the *Page 398 following statements were made by the judge during his examination of the defendant:
"Well, come up here. I want to ask you some questions." "Well, now let's quit fooling around here." "Then I am going to give you just about five minutes to get down there Mr. Byington and bring her back here. We will take a recess for about ten minutes so far as this case is concerned, and you may go with the sheriff and bring her back." "I think somebody's being taken for a ride."
and
"You will be remanded into the custody of the sheriff in execution of this judgment and the district and county attorney are here and I am submitting this case to them for an investigation with respect to the violation of any of the criminal laws of the State of Utah."
These statements, taken in sequence, indicate the development of a belief that defendant was guilty. Moreover, when they are considered in connection with the haste, the procedural irregularities, and the lack of consideration shown the defendant and his alleged wife, it is apparent that the judge became hostile to the defendant and biased and prejudiced to the extent that an opinion of guilt was formed by the judge before he ordered the county and district attorney to investigate. While the last quoted statement does not limit the investigation by the county and district attorney to the crime of perjury, that is the only crime suggested by the record and the only one the trial judge could reasonably have had in mind. For all practical purposes, the judge became the complaining witness in this prosecution. If actions and words can adequately picture bias and prejudice, then it is present in this case. I can well imagine that any reasonable person in defendant's predicament could never be convinced that he was fairly tried, convicted and sentenced. Rather, he would in good faith feel that the judge was in fact a prosecutor and that his constitutional rights to a fair trial by an impartial judge had been ignored.
While defendant must establish actual bias and prejudice and that the existence or non-existence of these elements *Page 399 must, in the first instance, be determined by the trial judge, nevertheless, the acts, conduct and pronouncement of the judge, overwhelmingly preponderate against his finding that he was unbiased and unprejudiced. This finding is subject to review by this court and the trial judge erred when he refused to disqualify himself.
The conviction of the defendant is set aside with directions to dismiss the action.
McDONOUGH, C.J., and PRATT, J., concur.