State v. Superior Court for Pacific County

• Decision Date: 18 December 1915
• Docket Number: 13112.
• Citation: 153 P. 1078,88 Wash. 669
• Court: Washington Supreme Court
• Parties: STATE ex rel. O'PHELAN, Pros. Atty., v. SUPERIOR COURT FOR PACIFIC COUNTY et al.

153 P. 1078

88 Wash. 669

STATE ex rel. O'PHELAN, Pros. Atty., v. SUPERIOR COURT FOR PACIFIC COUNTY et al.

No. 13112.

Supreme Court of Washington

December 18, 1915

Department 2. Mandamus by the State, on the relation of John I O'Phelan, Prosecuting Attorney of Pacific County, against the Superior Court for Pacific County; Edward H. Wright Judge. Writ to issue.

Parker J., dissenting.

G. Dolph Barnett, John I. O'Phelan, and M. M. Richardson, all of South Bend, for relator.

A. C. Shaw, of Spokane, for respondents.

MAIN J.

This is an application for a writ of mandamus directed to the superior court for Pacific county, and Hon. Edward H. Wright, as the judge thereof.

The facts upon the basis of which the writ must either issue or be denied are as follows: On July 9, 1915, there was pending in the superior court for Pacific county a cause entitled, State of Washington v. George Wheaton, Forrest Martin, and Frank Martin, in which the defendants named were charged with the crime of assault in the second degree.

On September 18, 1915, there was called to the attention of the trial judge a motion for a change of judge, supported by two affidavits, one by the prosecuting attorney, and the other by the prosecuting witness in the cause mentioned. These affidavits recited the prejudice of the judge against whom they were directed, as provided for in the Laws of 1911, p. 617, §§ 1, 2, 3 Rem. & Bal. Code, §§ 209-1, 209-2. The affidavits also recited that the convenience of witnesses and the ends of justice would be interfered with if the cause were transferred to another county for trial. Thereupon an order was entered which provided that 'the state of Washington be granted another judge to try the above-entitled action.'

Previous to the entry of this order, and on August 16, 1915, the defendants had filed a motion for change of venue on the ground of local prejudice. This motion was supported by affidavits, and was controverted by a large number of affidavits on the part of the state. The motion made for change of venue by the defendants was at no time noted for hearing, and the same had at no time been heard or passed upon by the respondent or any other judge.

On September 28, 1915, ten days after the order granting a change of judge was entered, the trial judge, on his own motion, entered an order which changed the venue of the case to Lewis county. This order recited the making of the previous order, and the further fact that the defendants had waived their constitutional right to have the cause tried in the county wherein the offense was charged to have been committed. The order also recited that neither the convenience of witnesses nor the ends of justice would be interfered with by the transfer.

After the entry of the order changing the venue, this application was made for a writ of mandamus to require the respondent to vacate and set aside the order changing the venue, for the reason that the respondent, after the affidavits of prejudice had been filed and the order entered granting a change of judge, had no power or authority to enter the subsequent order changing the venue. If the respondent retained power to enter an order changing the venue after having entered the previous order for a change of judge, the writ should be denied. On the other hand, if the respondent had no power to enter the subsequent order, the writ must be granted.

It is not claimed that the affidavits of prejudice did not conform to the requirements of section 209-2, 3 Rem. & Bal. Code, to which reference has already been made. Where an affidavit of prejudice is filed under this law, and the same is timely, and in a proper manner called to the attention of the judge against whom it is directed, such judge is thereby disqualified from proceeding further with the case, except in the particulars mentioned in the statute. State ex rel. Nelson v. Yakey, 64 Wash. 511, 117 P. 265; State ex rel. Lefebvre v. Clifford, 65 Wash. 313, 118 P. 40; State v. Sefrit, 82 Wash. 520, 144 P. 725; Washoe Copper Co. v. Hickey, 46 Mont. 363, 128 P. 584; Murdica v. State, 22 Wyo. 196, 137 P. 574.

Under the statute, when the affidavit is called to the attention of the judge, he may do one of four things: (a) Transfer the action to another department of the same court; (b) call in a judge from some other court; (c) apply to the Governor of the state to send a judge to try the case; and (d) if the convenience of witnesses, or the ends of justice will not be interfered with, and the action is of such a character that a change of venue may be ordered, he may send the case for trial to the most convenient county.

In this case, there being but one department of the superior court for Pacific county, the cause could not be transferred to another department of the same court. As appears from the facts stated, when the affidavits were presented, an order was entered granting a change of judge. Under this order the respondent had the power to do one of two things, either call in a judge from some other county of the state, or request the Governor to send a...