State v. Superior Court for Grays Harbor County

• Decision Date: 11 May 1926
• Docket Number: 19886.
• Citation: 139 Wash. 125,245 P. 929
• Court: Washington Supreme Court
• Parties: STATE et rel. ALFANI, Royal Italian Consul, v. SUPERIOR COURT FOR GRAYS HARBOR COUNTY et al.

245 P. 929

139 Wash. 125

STATE et rel. ALFANI, Royal Italian Consul, v. SUPERIOR COURT FOR GRAYS HARBOR COUNTY et al.

No. 19886.

Supreme Court of Washington

May 11, 1926

Department 1.

Appeal from Superior Court, Grays Harbor County; H. W. B. Hewen Judge.

Application by the State, on the relation of Alberto Alfani, Royal Italian Consul, for writ of mandamus to compel the Superior Court for Grays Harbor County, Hon. H. W. B. Hewen, Judge, to grant a change of judge to hear relator's petition for an order restraining the prosecuting attorney of such county from proceeding in the matter of the sentence of Guido Grossi on conviction of first degree murder until determination of his mental condition. Writ denied.

Harry Ellsworth Foster and Louis F. Buty, both of Seattle, and Herbert C. Bryson, of Walla Walla, for relator.

A. E Graham, of Aberdeen, for respondent.

ASKREN J.

Guido Grossi was convicted in Grays Harbor county in 1923 of the crime of murder in the first degree. The jury fixed the death penalty. Upon appeal to this court the conviction was affirmed. State v. Grossi, 131 Wash. 260, 230 P 164. The trial court of Grays Harbor county thereupon sentenced him to be hanged on February 13, 1925. On February 12, 1925, a petition was filed in the superior court of Walla Walla county, that being the county in which the state penitentiary is located, alleging that he was insane. Upon hearing the superior court of Walla Walla county entered an order restraining the warden of the penitentiary from proceeding with the hanging. Upon appeal to this court the order was affirmed upon the ground that the date for the hanging had passed and the question was therefore moot. Grossi v. Long, 238 P. 983. Thereafter Grossi was returned to Grays Harbor county, and since that date has been confined in the county jail. On the 8th day of March a petition was filed by the royal Italian consul alleging that Grossi was a subject of the kingdom of Italy, and praying that an order be entered restraining the prosecuting attorney of Grays Harbor county from proceeding in the matter of the sentence of Grossi until his mental condition could be determined. It was designated a habeas corpus petition; was filed as a new case; and accompanying it was an affidavit of prejudice against Hon. H. W. B. Hewen, the judge who tried the criminal case. Thereafter the prosecuting attorney filed a petition in the criminal case suggesting the defendant's supervening insanity, and asking the court to determine the question. The court treated the habeas corpus petition as an application to determine Grossi's sanity; consolidated the two petitions as one in the criminal action; and denied the application for a change of venue. Thereupon application was made to this court for a writ of mandamus to compel the superior court to grant a change of judges.

The authority for a change of judges is found in Rem. Comp. Stats. § 209-1, as follows:

'No judge of a superior court of the state of Washington shall sit to hear or try any action or proceeding when it shall be established, as hereinafter provided, that such judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause. In such case the presiding judge shall forthwith transfer the action to another department of the same court, or call in a judge from some other court, or apply to the governor to send a judge, to try the case; or, if the convenience of witnesses or the ends of justice will not be interfered with by such course, and the action is of such a character that a change of venue thereof may be ordered, he may send the case for trial to the most convenient court.'

At the time of the trial of the original charge Grossi pleaded insanity as a defense to the charge. The verdict of the jury foreclosed that question, so that the sole question now to be determined is whether he has become insane since his conviction.

It is the contention of relator that this is a proceeding within the purview of section 209-1, supra. The general rule, of course, is that an application for a change of venue comes too late, if made after submitting any question to the court's determination. But relator urges that the decision in Cooper v. Cooper, 83 Wash. 85, 145 P 66, recognizes the right to a change of judge even after judgment, where there is a new issue to be determined. An inspection of that case, however, shows that the statute providing for the filing of a petition to vacate or modify a judgment made provision for what we termed 'a...