183 Ind. 698 | Ind. | 1915
Lead Opinion
— Appellant was prosecuted and convicted in the Vigo Circuit Court upon an indictment returned to such court on January 24, 1914. Before pleading generally to the indictment appellant filed a plea in abatement, which, upon motion of the State, was stricken from the files of the court. Appellant then filed a motion to quash the indictment which was overruled. The exceptions of appellant to these rulings raise the only questions which are presented on appeal.
On behalf of appellant it is asserted that the charge in the indictment is not sufficient to show that appellant “gave or delivered” any of such ballots to any person not entitled to receive them as provided in §6936 Burns 1914, Acts 1899 p. 157, §54. There may 'be serious doubts as to whether the charge in the indictment is sufficient to show that he “gave or delivered” any of the ballots so as to make him criminally liable under the section heretofore mentioned, but this we need not decide. The charge contained in the indictment is clearly sufficient to show that he permitted such ballots to be removed and taken out of his custody and that he consented to such removal. Such a charge is sufficient under another section of our statute. §6914 Burns 1914, Acts 1899 p. 157, §32.
After the motion to quash was overruled appellant entered a plea of not guilty and a trial resulted in his conviction. The record does not show that he filed any motion for á new trial, and no error is assigned on appeal presenting any action or ruling of the court at or during the trial which is claimed to be prejudicial to appellant. The objections relating to the proceedings which preceded the plea to the merits are technical rather than substantial. Judgment affirmed.
Dissenting Opinion
Dissenting Opinion.
— I cannot get my reasoning processes to concur with the majority opinion herein and, while I recognize the futility of a dissenting opinion as being ordinarily only a protest or a specific method of recording a minority vote, yet to my mind the one- vital question presented by this record and but slightly touched on in the majority opinion, is so fraught with possibilities of great danger to the personal liberty of the citizens of the State, that I deem it my duty to espress my views thereon.
At the threshold of this case we are met with the fact that it is a criminal prosecution and has to do with the liberty of a citizen. A plea in abatement has been filed which covers 123 closely typewritten pages. It contains “immaterial, redundant and impertinent matter, much of which is scandalous”. Its “material facts might be concisely stated within the scope of two or three typewritten pages”. It
Another of the “grains of wheat” contained in the verified plea, without stating it in detail, was a full and complete charge of misconduct on the part of the court, clerk and jury commissioners in selecting and. drawing the grand
Had the court required that the scandalous matter or chaff be stricken out, leaving the grains of wheat, viz., the appointment on the court’s own motion of a special prosecuting attorney, thereby suspending the regularly elected officer, and the charge of corruption in the selection and empaneling of the grand jury, what would be the law of the case?
The only direct authority cited by appellee in support of the idea that circuit courts have an implied discretionary
As is said in State ex rel. v. Home Brewing Co. (1914), 182 Ind. 75, 105 N. E. 909: “Prosecuting attorneys are the historic law officers of the State. As early as 1824 they were appointed by the Governor and the duty placed on them ‘to prosecute all pleas, plaints, indictments, presentments and suits of every description on the part of the State.’ R. S. 1824 p. 127, §10. In 1831 their duties as fixed by statutory law were not materially different, but they were chosen by joint ballot of the senate and house of representatives. R. S. 1831 p. 88, §1. Thus the law continued until 1843 when provision was made for their election by the people. R. S. 1843 p. 100, §28, p. 1020, §1. By §11, Art. 7, of the present Constitution, they were made elective constitutional officers.”
Section 11, Art. 7, of the Constitution provides that “There shall be elected in each judicial circuit by the voters thereof, a prosecuting attorney, who shall hold his office for two years.” Section 9403 Burns 1914, §5861 R. S. 1881, provides that “At the general election in the year 1852, and every second year thereafter,, there shall be elected in each judicial circuit, a prosecuting attorney, who shall prosecute the pleas of the state in the circuit courts of-such circuit.” Section 9406 Burns 1914, §5864 R. S. 1881, further provides
Judges of the circuit courts and prosecuting attorneys are creatures of the Constitution, neither dependent or interdependent on the other but each complete within the sphere of their powers and duties, and it will not do to say that one constitutional public officer has properly performed his duty by indulging the presumption against another such officer that he has been or will be derelict in the performance of his duties. As is said in 22 Am. and Eng. Ency. Law (2d ed.) 1270, “the presumption that oiie officer has performed his duty cannot be invoked for the purpose of putting another officer in default, as the presumption of the performance of official duty applies equally in favor of each.” See, also, cases cited in support of above statement. When
By the appointment of the special prosecutor as herein alleged the regular prosecuting attorney was suspended from the office to which he had been elected by the people. A suspension from office has been defined to be “an interruption in the exercise of the officer’s duty”; “a deprivation of the office for a time”. The word “suspend” has been defined “to cause to cease for a time, to hinder from proceeding, to interrupt, to delay, to stay.” 8 Words and Phrases 6833.
The case of Dukes v. State, supra, which contains the expression above quoted has been clearly distinguished in Board, etc. v. McGregor (1909), 171 Ind. 634, 638, 87 N. E.
respect to an act of the court done ex necessitate in a matter where the authority could be reasonably implied from that expressly given, has suggested in later days grave constitutional questions.” I do not believe that such power is one of the inherent and sacred prerogatives of the court.
Without extending this opinion with a discussion of the question of jury corruption, how it is to be shown, and the improper selection of a grand jury, I believe that the action of the trial court in sustaining the motion to strike out the plea in abatement was prejudicial error and for that reason alone the cause should be reversed and remanded.
Note. — Reported in 109 N. E. 401, 748. As to the place where a crime is deemed to have been committed, see 44 Am. St. 79. Judicial notice of geographical facts, see 12 Ann, Cas. 927. See, also, under (1) 12 Cyc. 356; (2) 31 Cyc. 036; (3) 16 Cyc. 257; 31 Cyc. 6S; (5) 22 Cyc. 333; (6) 22 Cyc. 309, 310; (7) 22 Cyc. 253.