STATE EX REL. GANNON ETC. v. PORTER CIRCUIT COURT, BURNS, JUDGE.
No. 29,778
Supreme Court of Indiana
July 3, 1959
Rehearing denied in 159 N. E. 2d 574.
239 Ind. 637 | 159 N.E.2d 713
However, when the interrogatory is considered in conjunction with the pleadings as above set out and the evidence to which it is related we believe there would be no misunderstanding regarding the import of the question of fact propounded.
Given a reasonable construction, an answer to the interrogatory would have been controlling of the issue as presented by the pleadings above quoted. It was within the scope of the evidence and therefore it was error for the court to refuse it.
The petition for rehearing is denied, and judgment is reversed with instructions to sustain appellant‘s motion for new trial.
Arterburn, Jackson, Bobbitt and Landis, JJ., concur.
NOTE.—Reported in 158 N. E. 2d 157.
Rehearing denied in 159 N. E. 2d 574.
Charles W. Gannon, of Gary and Patrick Brennan, Prosecuting Attorney, 60th Judicial Circuit, for relator.
ACHOR, J.—This is an action for writ of mandate. The essential facts are as follows:
One Robert Lee Johnson was charged with murder in the St. Joseph Circuit Court in 1953. He filed a motion for change of venue from that county and pursuant thereto the venue was changed to the La Porte Circuit Court. Thereafter on motion of the defendant, and over the objection of the state, the La Porte Circuit Court granted a second change of venue
Thereafter the cause was submitted to a jury for trial in the La Porte Circuit Court, however because of “reprehensible” publicity given the case, as reported in the case of LaGrange etc. v. State (1958), 238 Ind. 689, 153 N. E. 2d 593, on request of both the defendant and the state submission was withdrawn from the jury.
Thereafter, the defendant filed a verified motion for change of venue from the county which stated among other things “that because of the discussion of this defendant and his defense it would be impossible for this defendant to have this case heard by a jury in La Porte County.”
To this motion Raymond M. Fox, Jr., the prosecuting attorney of the 32nd Judicial Circuit (La Porte County) and Patrick Brennan, the prosecuting attorney of the 60th Judicial Circuit (St. Joseph County), filed an answer to said motion admitting all its material allegations. The State of Indiana in said answer further expressly consented to the requested transfer and affirmatively stated “that it would be impossible to obtain a fair and impartial trial of the issues involved in this action in La Porte County, Indiana because of the great publicity attendant to this cause as alleged in defendant‘s verified application.”
Thereupon, relator herein, as special judge in said cause entered an order changing the venue of said cause from the La Porte Circuit Court to the Porter
Thereafter, this respondent, as judge of the Porter Circuit Court, upon his own motion entered a finding that the order of the La Porte Circuit Court granting a change of venue from La Porte Circuit Court to Porter Circuit Court in said cause was void and conferred no jurisdiction of the subject matter of said action or the person of said defendant upon Porter Circuit Court. The respondent thereupon entered an order remanding said cause from Porter Circuit to La Porte Circuit Court.
In support of his action respondent relies upon the case of State ex rel. Fox, supra. We therefore examine the law and the facts in that case to ascertain its decisive effect upon the facts in the case at bar. We find that the facts with which we are presently concerned differ in two essentials from those present in the former instance.
First: There is a difference in the substantive facts stated in the affidavits for change of venue. In the former case the affidavit merely alleged the statutory grounds in general terms that the defendant could not have a fair trial “on account of excitement and local prejudice” of the citizens of the county. Here, however, the affidavit asserted that on the basis of specifically stated facts “it would be impossible for the defendant to have this case heard by a jury in La Porte County and have the case decided solely upon the evidence presented in court.” (Our italics.) The statement is tantamount to an allegation that it would be impossible to obtain an impartial jury to try the case in La Porte County.
This distinction is significant for the reason that here we are concerned with a second change of venue
The decree granting the change in the former instance was unauthorized since it did not rest upon any statutory authority, since the statute which authorized a change on account of “excitement and local prejudice” expressly limited the right to such change to “only one change from the county.”
Neither did the change rest upon constitutional authority. The constitutional provision only guarantees “a public trial by an impartial jury in the county in which the offense shall have been committed.” (Our italics.) Therefore in the former instance the change was not sustained upon constitutional authority since there was no specific allegation, agreement or finding of fact that an impartial jury could not be obtained without such change of venue.
Second: In this case, as contrasted with the prior decision in the Fox case, supra, the state has concurred in the fact that under the specifically stated circumstances it would be impossible to obtain an impartial jury to try the case in the county of present venue.
This distinction is significant, for although under the Constitution (
The place of trial, like the right to trial by jury itself3 is a matter in which both the accused and the state are interested. It is of concern to both that the trial be had with the least possible delay and with the greatest possible advantage to both in the procuring of witnesses, and that the jury be permitted to view the situs of the offense, if desired.
For these reasons, where as in the former instance the state objected to a second change, it must be made to appear after attempt has actually been made to secure an impartial jury that such jury could not be obtained in the county of present venue. In the former case no attempt had been made to procure an impartial jury, nor was this deficiency supplied by a stipulation or agreement by the state that such facts existed. Therefore, the granting of the second change was contrary to law. However, in the instant case both the accused and the state in effect stipulate to facts which require a change in order that the accused be tried by an impartial jury as is his constitutional right.
When all the parties, including the State, agree and the court finds that it will be impossible to procure an impartial jury to fairly try a cause in the county of present venue, and when under such circumstances a verdict of guilty, if returned, could not be sustained on appeal because of the admission of error on the part of the state, it would be nonsensical for the law to say to the parties and the
See: Fitch v. Gundrum (1919), 69 Ind. App. 572, 122 N. E. 428; Center Township v. The Board of Commissioners of Marion County, et al. (1887), 110 Ind. 579, 10 N. E. 291; Gears v. State (1932), 203 Ind. 400, 180 N. E. 592; Watson v. Brady (1932), 205 Ind. 1, 185 N. E. 516; 56 Am. Jur., Venue, § 43, note 8, p. 49; 92 C. J. S. § 217, p. 991.
The alternative writ of mandate heretofore issued is therefore made permanent.
Arterburn, J., concurs.
Landis, J., concurs in the result
Bobbitt, J., dissents with opinion in which Jackson, J., concurs.
DISSENTING OPINION
BOBBITT, J.—I dissent from the majority opinion for the following reasons:
1. The motion for a change of venue in State ex rel. Fox, etc. v. La Porte Cir. Ct. et al. (1956), 236 Ind. 69, 71, 138 N. E. 2d 875, alleged that the defendant could not have a fair trial “on account of bias and local prejudice” of the citizens of the county. These were the statutory grounds for a change of venue from the county in a criminal case.
In my opinion the facts alleged in the motion for a change of venue from the county in the present
2. The right to a second or subsequent change of venue in the case of State v. Robert Lee Johnson1 was adjudicated in State ex rel. Fox, etc. v. La Porte Cir. Ct. et al., supra, and this decision is the law of the case and must be followed in all subsequent proceedings in that case, both in the trial court and in subsequent appeals.
F. W. and H., Ind. Tr. and Pract. § 2791, p. 375.
3. The majority opinion separates from the provision of
As recently as December 17, 1956, this court—four members of the present court concurring—in State ex rel. Fox, etc. v. La Porte Cir. Ct. et al., supra (1956), 236 Ind. 69, at page 79, 138 N. E. 2d 875, at page 880, said:
“The language in this clause of Article 1, Section 13, supra, is plain and specific. It does not say that the accused may have a trial by an impartial jury in a county adjoining that in which the offense was committed. The phrase ‘by an impartial jury’ cannot be separated from the re-
mainder of the clause of which it is a part, but must be construed with and in relation to the other phrases ‘the right to a public trial’ and ‘in the county in which the offense shall have been committed.’
“Section 13 of Article 1 sets forth five specific rights (1) the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; (2) to be heard by himself and counsel; (3) to demand the nature and cause of the accusation against him, and to have a copy thereof; (4) to meet the witnesses face to face; and (5) to have compulsory process for obtaining witnesses in his favor.
“These rights are of equal rank and importance. They are not vested rights and any and all of them may be waived by an accused. The provision for trial ‘by an impartial jury’ is not a separate specific right, granted without limitation as to the place where it is to be exercised, but rather is restricted by the phrase which follows it, viz., ‘in the county in which the offense shall have been committed.’ The only function of these two phrases is to describe and define the kind of public trial to which the accused is entitled.”
If this construction of
4. I also dissent because I believe the reasons advanced by the majority opinion and in the concurring opinion by Judge Achor in State ex rel. Fox, etc. v. La Porte Cir. Ct. et al., supra, for denying a second change of venue from the county, apply with equal force in the present case.
5. The number of changes of venue is strictly limited in Indiana by statute.
I would dissolve the alternative writ and deny a permanent writ.
Jackson, J., concurs in the foregoing opinion.
NOTE.—Reported in 159 N. E. 2d 713.