14 N.E.2d 590 | Ind. | 1938
Lead Opinion
The appellants Vurtis Neal and Hugh Marshall were jointly indicted for the murder of William *331 Bright by the grand jury of Shelby County. The first count of the charge was for murder in the first degree and the second for murder in the perpetration of a robbery. This appeal is prosecuted from a judgment of conviction on the second count. Fifty-three separate errors are assigned, all of which will be fully considered on account of the gravity of the punishment inflicted upon appellants.
Appellant Neal filed a separate motion to quash each count of the indictment, which was overruled. In support of the proposition that this constituted reversible error, it is 1. pointed out that the back of the indictment was indorsed, "A True Bill," and signed, "Lawrence Coers, Foreman," but that between the indorsement and the signature of the foreman were the names of twelve witnesses for the state. It is claimed that this was not a compliance with the statute and the indictment was therefore bad, and should have been quashed. Section 9-901 Burns' Ann. St. 1933 (§ 2123 Baldwin's 1934), provides that a grand jury indictment must "be indorsed by the foreman of the grand jury, `A true bill,' and he must subscribe
his name thereon as foreman." (Our italics.) Denton v. State
(1900),
At the end of the last page of the indictment appeared the following: "Recorded this 25th day of January, 1937. *332 Russell M. Cherry, Clerk," and it was indorsed on the back, 2. "Filed, Jan. 25, 1937. Nellie P. Hale, Clerk, Shelby Circuit Court." From appellants' brief we may assume that Russell M. Cherry was clerk of the grand jury that returned the indictment. Section 9-904 Burns' Ann. St. 1933 (§ 2126 Baldwin's 1934), requires that the clerk of the court shall file and record all indictments and indorse thereon the date of such filing. Section 9-810 Burns 1933 (§ 2106 Baldwin's 1934), provides that "the grand jury must select one of its number as clerk," etc., but there is no provision for filing the indictment with the clerk of the grand jury or that he shall indorse or sign it. The purported indorsement and signature of the clerk of the grand jury on the indictment may be regarded as surplusage, in no wise harmful or prejudicial to appellants. It afforded no ground for quashing the charge.
The appellant Marshall claims reversible error because the trial court denied his motion for a separate trial. The record discloses that before pleading to the charge Marshall 3-7. presented a verified motion to the court alleging, in substance, that he had a separate and distinct meritorious defense to the alleged crime and that he felt that the jury could not justly weigh his defense with the evidence of his co-defendant. He further stated therein that he was "contemplating a special plea." The motion did not disclose the nature of the special plea contemplated, nor did it contain any facts from which the trial court might have determined whether the petitioner's rights would be adversely affected by a joint trial beyond the assertions contained in the motion. No answer or counter-affidavits were filed by the state, and the court denied Marshall's request for a separate trial.
Formerly, persons jointly charged with a felony were entitled to a separate trial, upon demand (§ 9-1804 Burns *333 1933, § 2284 Baldwin's 1934), but this practice was changed by the Acts of 1935, Ch. 92, § 1, p. 286, § 9-1804 Burns 1933, (Pocket Supp.), § 2284 Baldwin's 1935 Supp., which provides: "When two (2) or more defendants are jointly charged with any offense, whether a felony or a misdemeanor, they shall be tried jointly, unless the court, in its discretion, on the motion of the prosecuting attorney, or of any defendant, or on its own motion, orders separate trials." There was consequently no error in the denial of Marshall's demand for a separate trial, unless it may be said that the trial court abused its discretion.
Judicial discretion is the option which the judge may exercise between the doing and the not doing of a thing, the doing of which can not be demanded as an absolute right of the party asking it to be done. McFarlan v. Fowler Bank City Trust Co.
(1938), ante 10,
In the absence of some showing of fact as a basis for the conclusion that Marshall's defense would be prejudiced by a joint trial, this court can not say that the denial of his motion for a separate hearing was an abuse of discretion. The mere fact that the matter was heard on a verified motion, and that no counter-affidavits were *334 presented and no evidence heard, does not present such a situation as we can say that its denial was error. We must, in such a case, look to the facts brought to the notice of the court, undenied as they were, and from them determine whether they made out a plain abuse of the power conferred on the court by the express terms of the statute. It may be assumed that the special plea which Marshall contemplated had reference to the plea of insanity, which was entered immediately after a separate trial was denied. The record discloses that a like motion for a separate trial and a like plea of insanity were thereafter entered by Neal. This court can not say, as a matter of law, that when two or more persons are jointly charged with crime, the fact that one or more of them contemplates, or does in fact enter, special pleas of insanity, will entitle either of them to a separate trial, in the absence of a showing of other facts disclosing that such denial amounted to an abuse of discretion on the part of the trial court. There was no error in denying appellants' motions for separate trials.
The appellant Neal filed his separate motion for a change of venue from the regular judge of the Shelby Circuit Court, which motion was sustained and a change of venue granted. 8. Marshall objected to the filing of the motion and excepted to the granting of the same. The regular judge submitted the names of three prospective special judges. The state and Neal each struck off the name of one of the nominees and the court designated the appointment of the nominee whose name remained, but he declined to serve. The court thereupon submitted a second list of three names. Two of the names on the second list were on the previous list. This was proper. Shockley v. State (1924),
Neal's motion and affidavit for a change of venue from the judge was filed with and presented to the court on March 13, 1937. This date is important because Chapter 290, Acts of 1937, carrying an emergency clause, became effective at 4:45 P.M. on March 12, 1937. This act expressly repealed § 9-1302 Burns 1933, § 2223 Baldwin's 1934, which, prior thereto, had covered the subject of changes of venue from the judge in criminal cases. The act of 1937, referred to above, made no provision for the method of selecting special judges.
The General Assembly of 1937 passed another act relating to changes of venue from judges, applicable to civil and criminal cases alike. Acts of 1937, Ch. 85, § 2-1430 Burns 1933 (Pocket Supp.), § 2223-1 Baldwin's 1937 Supp. It provides, among other things, that a party asking for a change from the judge may include in the application an objection to the presiding judge selecting the special judge or submitting names from whom the special judge shall be selected, in which event the clerk of the Supreme Court shall, subject to the direction of this court, submit names from whom the special judge *336 shall be selected, in the manner therein provided. This act concludes: "Nothing contained in this section shall operate to change the present procedure in the selection of judges upon change of venue taken from the judge, excepting where an objection is incorporated in the affidavit for change of venue from the judge as above provided." Appellant Neal made no objection in his affidavit to the presiding judge selecting a special judge or submitting names, so the provisions of Chapter 85 of the Acts of 1937 were not invoked, and we are not here concerned with them.
In considering the situation created by the enactment of Chapter 290, Acts of 1937, and the resulting repeal of § 9-1302 Burns 1933, § 2223 Baldwin's 1934, this court held, in the case of State v. Baker (1937),
Appellants contend that there was reversible error in the manner of selecting the special judge because: (1) The court submitted names before the parties failed to agree on a special judge; (2) the court permitted the state to strike from the lists submitted before appellants were permitted to strike; (3) the court, in submitting the second list, included the names of two persons who had been stricken from the first list; (4) the court permitted the clerk to strike from the second list, upon the failure and refusal of Neal to strike; (5) that neither the Honorable John H. Morris nor the Honorable Roscoe C. O'Byrne, whose names appeared on the lists submitted by the presiding judge, were members of the Shelby County, Indiana, bar, or available judges of circuit courts adjoining said Shelby County.
The record before us does not disclose that the parties ever agreed upon the appointment of a special judge. Granting that it is mandatory that an agreement on a special judge duly 9, 10. made in open court shall be respected, we can not presuppose such an agreement in the absence of an affirmative showing. The statute is silent as to within what limitations of time an agreement may be reached, and we are unauthorized to read into its terms any conditions which would require the trial judge to delay the appointment in the hope or expectation that the parties might ultimately arrive at an agreement. If the parties desire to avail themselves of the privilege of agreeing upon a special judge to try their case they must act promptly and positively. If they wish *338 this court to review an alleged denial of this right they must bring us a record clearly showing that they did have such an agreement; that the presiding judge was fully advised of such fact in open court, and that a proper and specific exception was saved at the time.
It is next asserted that the presiding judge erred in permitting the state to strike first from the lists of prospective special judges submitted by him. The proper 11. procedure in this regard is not clearly disclosed by the statute. It simply provides that "the plaintiff side and the defendant side . . . may strike off one (1) of such names, each." Section 2-1409 Burns 1933, § 207 Baldwin's 1934. Nothing is said about the order of striking. It would, of course, be error to deny a party the right to strike from the names submitted. Stephen v. State (1934),
On the second list of prospective special judges submitted to the parties appeared the names of two persons that had been stricken from the prior list. We find nothing in the 8. statute or the decisions that condemns this practice. Appellants have cited the case of State ex rel. Kealing
v. Clay Circuit Court (1934),
The following excerpt from the record discloses what occurred after the second list was submitted:
"And the defendant, Vurtis Neal, now refuses to strike 12. off on the list of Special Judges herein.
"And the Prosecuting Attorney now strikes off and the Clerk of this Court, for the defendant, Vurtis Neal, now strikes off and the Hon. Roscoe C. O'Byrne remaining not stricken off, the Court appoints the Hon. Roscoe C. O'Byrne . . . And the defendant, Vurtis Neal, now objects and excepts to the appointment of the Hon. Roscoe O'Byrne, Special Judge."
There was no withdrawal of Neal's refusal to strike and no request for more time to exercise that privilege. One can not invoke the action of a court in a matter of this kind and then paralyze its functioning by refusing to move. There was nothing improper in permitting the clerk to strike for Neal, under the situation disclosed by the record quoted above.
There is no merit in the objection that two of the persons whose names appeared on the lists submitted were neither members of the Shelby County, Indiana, bar, or available judges of 13. circuits adjoining said Shelby County. The statute prescribes that special judges shall be "competent and disinterested persons, each of whom shall be an available judge or member of the bar of this state." Section 2-1409 Burns 1933, § 207 Baldwin's 1934. No showing is made that any of the nominees did not possess the statutory qualifications.
There was a motion for a directed verdict for the appellants at the close of the state's case, and it is asserted *341
that, under the evidence, this ought to have been 14. sustained. In support of this proposition it is urged that to sustain the second count of the indictment (murder in the perpetration of a robbery) it was incumbent on the state to establish that appellants were actually committing the robbery when the unlawful killing occurred. It is further claimed that the undisputed evidence shows that the crime of robbery was consummated in the city of Indianapolis, and the killing occurred in Shelby County several hours later. In support of their theory, appellants rely upon the rule laid down in 54 Corpus Juris, p. 1011, as follows: "To constitute robbery there must be an asportation. In other words, it must appear that the property was taken from the possession of the victim into that of the robber. But the crime is consummated if the robber acquires possession of the property for even a short time, and his subsequent disposition of the property taken is immaterial." This rule is well recognized in Indiana. See Chizum v. State (1932),
The undisputed facts are, that the appellants accosted Bright on Washington Street, in Indianapolis, when he stopped his car at a signal light early in the evening of the day the killing occurred. After threatening the decedent with a pistol he was ordered to drive his car a short distance and stop. Neal then took the wheel of the automobile, while Bright was placed in the rear seat with Marshall. A stop was made at a filling station, where gasoline was obtained. The appellants proceeded with the decedent and his automobile across the Marion County line into Shelby County. The car was parked at the edge of a cornfield and Bright was ordered to alight. He was then searched and deprived of a small sum of money. *342
While Marshall was obtaining a rope from the car, Neal shot Bright four times, causing his instant death. Appellants placed the body in the car and drove a short distance to a bridge, where they threw the body into the river. They then proceeded to Madison, Indiana, with the stolen car. In Bissot v. State
(1876),
The robbery and murder of Bright was a single uninterrupted transaction. Appellants did not depart from the felonious undertaking from the time they stopped Bright in Indianapolis until they killed him in Shelby County. The crime was continuous in its purposes and objectives. Conceding that the robbery was completed, so far as the automobile was concerned, when Bright was deprived of its possession in Indianapolis, his removal to the place of his death can not be differentiated as a separate or distinct transaction. The taking of his money from the pockets of the victim, the disposal of his body, and the transportation of the car from the scene of the crime to Madison, were all parts of the same unlawful enterprise.
The case of State v. Daniels (1922),
Misconduct is charged against one of counsel for the state. From a bill of exceptions it appears that a special *344 prosecuting attorney said of appellants in his argument to 15. the jury: "That when they are caught with their pants down, what do they do, they put on the old plea of insanity." Appellants objected to this statement, and counsel for the prosecution continued: "I told the jury that was my opinion. I have a right to my opinion in this matter. I have not tried to interrupt them on the other side." Whereupon, the court said to the jury: "All remarks at this time are stricken from the record. The Court does not feel that coming up by way of argument the Court can sustain the motion on the objection, of course the jury understands it is purely a matter of argument. The motion and objection of the defendants, are overruled, and denied with exceptions separately and severally to each." This was followed by the appellants' motion "that the jury be discharged and the proceedings in this case be dismissed, and that the same be withdrawn from the jury." This motion was likewise denied, with exceptions.
Appellants rely for reversal on Lewis v. State (1894),
"It is the law that when the party who is injured by the wrong (by improper argument) calls for the intervention of the court by an objection, it will not do for the court to remain silent, leaving the matter of misconduct with the offending party and the jury. The court is bound to interpose when so called upon, and if an improper and injurious statement has been made without excuse, the effect of it should be erased from the minds *345 of the jury then and there, by an emphatic and explicit admonition from the court.
"The jury should be made to understand that in making the statement counsel violated the propriety of his position, and that if they did not wholly disregard it they would violate their duty as jurors.
"The record discloses that the court, in this instance, remained silent and refused to interfere when the objection was made."
The cause was reversed. In the case at bar the court admonished the jury to the extent that it ordered counsel's remarks stricken from the record, and advised the jury that said remarks were purely a matter of argument. This distinguishes the case from the Lewis case quoted above. The remarks of counsel in the case before us were ill-advised, if not improper, and it is well that prosecuting officials should confine their arguments to a discussion of the evidence and the legal principles involved. In view of the timely and proper action of the trial judge, however, in ordering the remarks stricken out, and in telling the jury that said remarks were purely a matter of argument, we can not say that reversible error was committed. It may be assumed that the jury was governed, in its consideration of the case, by the observations made to it by the presiding judge. We would be unwarranted in ordering a reversal of the cause on this ground.
Error is also predicated upon the giving of eleven instructions by the court on its own motion, and on its refusal to give twenty-two instructions tendered by appellants. It can not be expected that we shall consider and discuss each of these thirty-three charges separately. It is sufficient to say that we have carefully read each of them and that we find no error in respect thereto. In that part of their brief devoted to the argument of the case, the appellants say, generally, that the instructions given *346 were voluminous and confusing, and that the matter of insanity was over-emphasized. The issue of unsoundness of mind was raised by the special pleas of both appellants, and the very nature of the subject placed on the trial court the obligation to advise the jury fully in that regard, inasmuch as instructions on the subject were requested by appellants.
After having fully considered every alleged error presented by the appellants, we have reached the conclusion that the judgment of the Shelby Circuit Court should be affirmed. It is so ordered.
Addendum
PETITION FOR STAY OF EXECUTION. The appellants have this day filed in this court a petition for a stay of execution based upon the fact that they have filed a petition for a writ of error coram nobis in the 16, 17. Shelby Circuit Court. On yesterday, July 6, 1938, this court denied a petition for rehearing which extinguished the jurisdiction of this court over the case. This court is without power to grant stays of execution except in aid of its appellate jurisdiction over cases pending on appeal.
The petition for stay of execution is denied for want of jurisdiction in this court to grant the stay upon authority ofDiamond v. State (1924),