State ex rel. Powell v. Ilsley, 3229

• Decision Date: 27 December 1963
• Docket Number: No. 3229,3229
• Citation: 387 P.2d 676
• Parties: STATE of Wyoming ex rel. S. E. POWELL, Petitioner, v. John P. ILSLEY, District Judge, and the District Court, Seventh Judicial District, Natrona County, Wyoming, Respondents.
• Court: Wyoming Supreme Court

Page 676

387 P.2d 676

STATE of Wyoming ex rel. S. E. POWELL, Petitioner, v. John P. ILSLEY, District Judge, and the District Court, Seventh Judicial District, Natrona County, Wyoming, Respondents.

No. 3229.

Supreme Court of Wyoming.

Dec. 27, 1963.

Raymond B. Whitaker and Jerry A. Yaap, Casper, for petitioner.

Addison E. Winter and Robert Jerry Hand, Deputy County and Prosecuting Attys., Casper, for respondents.

Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

An alternative writ of prohibition was issued by this court to the District Court of Natrona County, Seventh Judicial District, and to District Judge John P. Ilsley, upon a verified petition of S. E. Powell who stands convicted in that court of aggravated robbery. The question now is whether the writ should be made permanent or whether the alternative writ should be quashed and held for naught.

The record and other information presented to us indicate Powell has been tried before a jury; that a verdict of guilty was returned by the jury; that a motion for new trial has been denied; that sentence has been imposed by the trial court; and that notice of appeal has been filed by the defendant.

In consequence of this, it appears neither the court nor the judge named in the alternative writ has any further function to perform in the trial of defendant, and therefore a writ of prohibition is not proper. The writ of prohibition is granted to prevent action and not to undo what has already been done. State ex rel. May v. Ausherman, 11 Wyo. 410, 72 P. 200, 204, rehearing denied 73 P. 548; State ex rel. State Tax Commission v. First Judicial District Court, 69 N.M. 295, 366 P.2d 143, 145; O'Brien v. Olson, 42 Cal.App.2d 449, 109 P.2d 8, 14.

Moreover, the writ of prohibition is discretionary and not a writ of right. It should ordinarily be used with caution and not issued in a doubtful case. State ex rel. Poston v. District Court of Eighth Judicial Dist., Fremont County, 31 Wyo. 413, 227 P. 378, 382-383, 35 A.L.R. 1082; State ex rel. Cone v. Bruce, 227 Mo.App. 631, 55 S.W.2d 733, 737. See also State ex rel. Jones v. District Court of Ninth Judicial Dist., 37 Wyo. 516, 263 P. 700, 703; and City of Sheridan v. Cadle, 24 Wyo. 293, 157 P. 892, 895.

Some Doubtful Aspects

In the instant case, petitioner claims he was entitled to 30 days after his arraignment and after a trial date had been set within which to file an affidavit of prejudice against the presiding judge. This claim is based upon counsel's interpretation of § 1-59, W.S.1957, which provides that when a change of judge is demanded, the affidavit for such shall be filed not later than 30 days prior to the trial of the case, and that otherwise, the change of judge shall not be granted.

Powell filed an affidavit of prejudice against Judge Ilsley only 20 days before the commencement of his trial. He now contends Judge Ilsley was thereafter without jurisdiction and that a writ of prohibition should issue. We think, however, that aside from the action being completed which petitioner seeks to prohibit, the right to prohibition is rendered doubtful by reason of the following considerations which have come to our attention from the record of proceedings in the trial court:

1. A codefendant with Powell, Jackie Ray Hargrove, filed an affidavit of prejudice against T. C. Daniels and Franklin B. Sheldon, both judges of the Seventh Judicial District, and the case was assigned to Judge Ilsley, a district judge from another district. As we understand the record, Powell acquiesced in this application for change of judge. At least his attorney agreed with the court that arguments pertaining to Hargrove's affidavit and to the state's objections thereto were 'apropos and pertinent to both these defendants.' The matter of the state's objections to this affidavit of prejudice was resolved, as far as Powell is concerned, by a stipulation, which Powell's attorney and the county attorney agreed to, specifying that Judge Ilsley was acceptable for the trial judge.

Section 1-63, W.S.1957, makes it quite clear that nothing in the criminal code shall authorize the granting of more than one change of judge 'in any case.' One change was indeed made, without objection from Powell, and in fact with his active acquiescence and consent.

2. Notwithstanding the stipulation made by Powell's attorneys that Judge Ilsley was acceptable as the trial judge, Powell subsequently filed his affidavit of prejudice against such judge. The court raised two questions about this affidavit, suggesting (1) that one change of judge had already been made and it was doubtful whether Powell was entitled to a second change; and (2) that it was...