Opinion
No. 72-208
Decided September 20, 1972.
Prohibition — To prohibit proceedings in criminal case — Writ denied, when — Jurisdiction of trial judge — Duty of prosecuting attorney.
APPEAL from the Court of Appeals for Wood County.
This is an appeal from the dismissal of an original action in prohibition by the Court of Appeals for Wood County.
Appellants Ronnie Woodbury and Thomas Woodbury are defendants in multiple-count criminal indictments and are presently awaiting trial. Appellees are Judges Floyd A. Coller and Kenneth H. Adams of the Wood County Common Pleas Court, and Daniel T. Spitler, prosecuting attorney of Wood County.
In the Court of Appeals, appellants sought a writ prohibiting each of said appellees from proceeding further with the subject criminal cases. The action was predicated upon the claim that the prosecutor and Judge Coller had breached an agreement with appellants' counsel to accept guilty pleas as to one count from each of appellants herein. Further, it was claimed that pursuant to such agreement appellants were to be granted immunity from further prosecution as to the remaining counts. Appellants claimed further that in reliance on the promise of immunity they gave sworn statements to the prosecutor and submitted to polygraph tests conducted by the prosecutor's office which would act to their jeopardy should they be required to stand trial on the multiple-count indictments.
The criminal cases, wherein appellants are defendants, were transferred to Judge Kenneth H. Adams, before whom they are to be tried.
Messrs. Hanna Hanna, for appellants.
Mr. Daniel T. Spitler, prosecuting attorney, and Mr. C. William Brownfield, Jr., for appellees.
This prohibition action is directed to two judges and a prosecuting attorney. The criminal cases which are the subject of the instant prohibition action are no longer assigned to appellee Judge Floyd A. Coller. Prohibition does not lie as to one who neither claims nor is about to exercise jurisdiction.
A writ of prohibition is sought to prevent appellee Daniel T. Spitler from proceeding with the prosecution of the appellants' criminal cases. Prohibition will not lie as to a prosecutor who is duty bound to proceed to prosecute pursuant to indictment. The prosecuting attorney will be required to carry out any proper agreements entered into with defense counsel which were relied upon by appellants to their prejudice. The prosecuting attorney, in oral argument before this court, asserted his intention to carry out completely such agreements.
These cases have been assigned to the appellee Judge Kenneth W. Adams for disposition, including trial. There is nothing in the record in this cause upon which this court could properly base the granting of a writ of prohibition directed to Judge Adams.
For the foregoing reasons, the dismissal of the action in prohibition by the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, CORRIGAN, STERN, LEACH and BROWN, JJ., concur.