State v. Clark , 125 Wash. 294 ( 1923 )

Mackintosh, J.

This is an appeal by the defendant, Clark, from a judgment of conviction rendered by the superior court for Chelan county, upon an information charging him with the commission of a felony of less degree than a capital offense, and involves the question whether the court erred in refusing '.to grant his motion for a change of judge based upon his affidavit of prejudice filed in pursuance of the provisions of §§ 209-1 and 209-2, Eem. Comp. £!tat. [P. c. §§ 8546, 8547.]

The facts are not in dispute. The information, on which the conviction of the defendant was had, was filed on November 20, 1921. A warrant of arrest was immediately issued and appellant taken into custody thereunder. There was no indorsement upon the warrant fixing the amount of bail, as contemplated by §2079, Rem. Comp. Stat. fP. C. §9177.] On December 2, 1921, appellant was brought before the court and arraigned, at which time he plead not guilty; the whole of the record of his plea and the then fixing of the amount of his bail being made as follows:

“This ease being called in open court on above date. The defendant F. L. Clarke in answer to information read, entered plea of not guilty. Bond fixed in the sum of $1,500. So ordered.”

On December 20, 1921, the prosecuting attorney served notice upon appellant’s counsel that he would, on December 31, 1921, move the court to set the case for trial. On December 23d, eight days before the time so noted for the setting of the case for trial, appellant served upon the prosecuting attorney and filed his affidavit of prejudice against the resident judge, moving for a change of judge, and noted the motion for hearing on the day the prosecuting attorney had noted for hearing his motion to set the case for trial. The motion for change of judge was heard at the time appointed, and overruled; and there-upon the case was by the court set for trial, and subsequently tried before the judge against whom appellant’s affidavit of prejudice had been filed.

The statute upon which the application is based .(§§ 209-1 and 209-2, Rem. Comp. Stat.) [P. C. §§ 8546, 8547], when literally read, would seem to imply that the right granted could be invoked at any stage of proceedings before the entry of final judgment; but realizing that such a construction would make the statute an instrument capable of abuse and unduly hamper superior courts in the, administration of justice, we held, soon after its enactment, that this was not the legislative intent; and that it was not intended to put within the power of a party to an action “to speculate upon what rulings the court will make on propositions that are involved in the case and, if the rulings do not happen to be in his favor, to then for the first time raise the jurisdictional question.” State ex rel. Lefebvre v. Clifford, 65 Wash. 313, 118 Pac. 40. In later cases we held in substance that the application is timely made when made before the court is called upon to make a ruling in the case affecting the merits, or some ruling in response to ¡ a motion made in the case calling for the exercise of discretion. State ex rel. Jones v. Gay, 65 Wash. 629, 118 Pac. 830; Fortson Shingle Co. v. Skagland, 77 Wash. 8, 137 Pac. 304; State ex rel. Deavers v. French, 78 Wash. 260, 138 Pac. 869; Nance v. Woods, 79 Wash. 188, 140 Pac. 323; State ex rel. Dunham v. Superior Court, 106 Wash. 507, 180 Pac. 481.

The last expression by us upon the subject is found in State ex rel. Davis v. Superior Court, 114 Wash. 335, 195 Pac. 25, where we said:

“The point we wish to emphasize is that a motion for a change- of judges supported by an affidavit of prejudice is timely made if filed and called to the attention of the court before it; has made any ruling whatsoever in the case, either on the motion of the party making the affidavit or on the motion of any other party to the action, of the hearing of which the party making the affidavit has been given notice, otherwise it is not timely made.”

The question before us is whether the situation disclosed by the record in-this case is one that comes within the operation of the rule as announced in the Davis case, supra. As we have already indicated, the court has deviated somewhat from the literal reading of the statute in order to establish a workable procedure, and, having done that, it ill behooves the court to then proceed to modify the rule so that new confusion is introduced into the practice. We are determined to abide by the established rule and are satisfied that the facts in this case fall within it. When the defendant is called before the court for arraignment, the judge is then required either to make a ruling or exercise his discretion. .It- is unnecessary to detail the numerous situations that might arise upon such an occasion which would call for the court’s action, and although in this case all that the court did was to fix bail (which might have been fixed ex parte before the arrest was made) and receive the plea of not guilty, still,' the question of whether the affidavit was timely presented is not a question of what actually took place, but of what might have occurred.

In the interest of orderly procedure and conformity to the rule heretofore announced, we hold that the affidavit of prejudice should have been filed before the arraignment. Judgment affirmed.

Main, C. J., Bridges, Tolman, and Pemberton, JJ., concur.

Mitchell, J., concurs in the result.