Forrest v. Graham
| Citation | 123 Utah 591,261 P.2d 169 |
| Decision Date | 16 September 1953 |
| Docket Number | No. 8005,8005 |
| Parties | FORREST, v. GRAHAM. |
| Court | Utah Supreme Court |
Glen S. Hatch, Salt Lake City, for appellant.
E. R. Callister, Atty. Gen., Walter L. Budge, Asst. Atty. Gen., for respondent.
This is an appeal from a judgment entered below in a habeas corpus proceeding that the appellant is and has been lawfully detained in the custody of the respondent, Warden of the Utah State Prison.
Appellant was tried for and convicted of the crime of second degree burglary on May 16, 1952, in the Seventh Judicial District Court of Carbon County before Judge L. Leland Larson. Subsequently a motion for a new trial was granted, but the appellant's motion for a change of venue for the second trial was denied by Judge F. W. Keller, the other judge of that district. At the second trial, Judge A. H. Ellett of the Third Judicial District presided, having been requested by Judge Keller to try the case in order that Judge Keller could attend a grazing board meeting. Judge Ellett heard the evidence, instructed the jury, and after they had retired to deliberate on a verdict, Judge Keller returned to the courthouse. Thereupon at the suggestion of Judge Ellett, Judge Keller took over the duties of presiding and Judge Ellett returned to his own district. Apparently no objection was made at that time either by the State or by the appellant to this substitution. When the jury returned with a verdict of guilty, Judge Keller received the verdict, and subsequently sentenced the appellant to an indeterminate term in the State Prison, denied his request for probation, and committed him to the prison.
The appellant contends that Judge Keller had divested himself of jurisdiction in the case by calling in Judge Ellett to preside and that he could not thereafter act in the case except to perform ministerial acts; that the act of receiving the jury's verdict, sentencing the appellant and committing him to prison were not ministerial, but judicial acts; and that therefore the acts performed by Judge Keller in the case were null and void for want of jurisdiction. Reliance is placed by the appellant on State ex rel. Moser v. District Court, 116 Mont. 305, 151 P.2d 1002; State ex rel. Sullivan v. District Court, 122 Mont. 1, 196 P.2d 452; McCabe v. Whitehill, 51 N.M. 424, 186 P.2d 514. In the first cited case, a district judge who had voluntarily disqualified himself from hearing a case and who had called in a judge from another district to hear it, was held to have no jurisdiction to thereafter cite the relator for contempt of court for acts allegedly arising in connection with that case. In each of the other two cited cases relied upon by the appellant, a district judge who was disqualified by the filing of an affidavit of prejudice and bias by one of the litigants, was held to lack jurisdiction to do anything in connection with the case except in ministerial matters such as arranging the calendar, regulating the order of business, and calling in another judge or transferring the case.
The above cases relied upon by the appellant are not controlling here for the reason that Judge Keller was at no time disqualified to act in the trial of the appellant. Although the appellant moved for a change of venue from Carbon County and that motion was denied by Judge Keller, he did not apply for a change of judge on the ground that a fair and impartial trial could not be had by reason of the interest or prejudice of the judge, as permitted by sec. 77-25-2, Utah Code Annotated 1953. Nor did Judge Keller voluntarily disqualify himself from hearing the case because of bias, prejudice or interest. All Judge Keller did was to request that Judge Ellett try the case in order that he could attend a grazing board meeting. This request was presumably made pursuant to sec. 78-3-13, Utah Code Annotated 1953, which provides:
'Any district judge may hold a district court in any county at the request of the judge of the district, and upon the request of the governor it shall be his duty to do so; and in either case the judge holding the court shall have the same powers as the judge thereof.'
Nothing in that statute requires that the requesting district judge be disqualified in the case before he can request a judge from another district to hold court in his district.
As heretofore stated, Judge Ellett presided over the trial to the point where the jury had retired to deliberate on a verdict. While they were so deliberating Judge Keller took over the duties of presiding, and on the...
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