People v. McGarvey

McKinstry, J. : The record sent up with the return of the writ of review shows, that one Jesse Anthony, who had been indicted in Men[328]docino County for the crime of murder, moved the Superior Court of that county—the respondent then presiding as judge of said Court—to transfer the trial of the indictment to Tehama County, “for the reason that the judge of this Court is disqualified, having been attorney for the defendant in this case, and for the further reason, that it will be for the convenience of witnesses,” etc. In support of the application, affidavits were read and filed. By the respondent, as judge then presiding, it was ordered: “ * * * That the place of trial of this case must be changed, for the reason that the judge of this Court has been attorney for the defendant, and, according to said affidavits, Tehama County will be more convenient for witnesses than any adjoining county; wherefore, it is ordered and adjudged that this case be and the same is hereby transferred to the Superior Court of the County of Tehama for trial.”

The power of the Superior Courts to transfer an indictment or information for trial to another county is derived -solely from § 1C33 of the Penal Code, and the five sections immediately following it, which together constitute a chapter, headed, “ líe mo val of the Action Before Trial." Section 170 of the Code of Civil Procedure is contained in a chapter which treats of the “ Disqualifications of Judges,” and in itself confers no power upon any Court or judge. After providing that no judge shall sit or act in an action or proceeding who is a party, or related to a party within the third degree, or who has been attorney or counsel for either party, it is declared that the prohibition shall not prevent such judge from regulating the order of business, or transferring the action to some other Court. This is simply declaring that the disqualified judge may, notwithstanding his disqualification, act with reference to arranging the calendar, and transferring the cause to another county, as fully and efficaciously as could a judge qualified to try the case.

A judge disqualified to try a civil action may order the trial to be changed to another county, when the motion is made on the ground of his disqualification. Section 397 of the Code of Civil Procedure reads as "follows:

“ The Court may, on motion, change the place of trial in the following esses:

“ 1. When the county designated in the complaint is not the proper county.