*1 Judge, Reeves, et al. ex rel. Poindexter Rehearing April denied 28,871. 1952. Filed [No. May 1952.] *2 Evansville, Lockyear, of for relator. Theodore *3 Prosecuting Attorney, Wever, First Judicial B. Paul Indiana, respondents. Circuit of 1951, an affidavit was On October J. Draper, charg City City of Evansville of the filed in the Court here, the ing Poindexter, with of E. the relator Ollie driving while under the in fense of a motor vehicle intoxicating 16, 1951, liquor. On October he fluence of arraigned plea guilty. entered of not was He by jury demanded trial and the cause continued to was a later date for trial. 24, 1951,
On October the while affidavit filed in City pending, charging the Court was still an affidavit Vanderburgh him with the same offense was filed in the 29, 1951, Circuit appeared spe- Court. October he On cially in plea the abatement, Circuit Court and filed a in to which the state filed answer on December 1951. January On evidence was heard on the issues joined by plea the in abatement thereto, and answer January 7, 1952, plea abatement was in on
overruled. alleged charg- plea in abatement that an affidavit
ing Poindexter with the commission of offense same City was filed in the which Court on October Court, was before the of the affidavit in the Circuit pending City and that the still cause was in Court. allegations plea except The State admitted the pending that it denied the cause then in was still City proceeding Court. The discloses that the evidence City in the was dismissed Court on October on motion of the State. January 15, 1952,
On the relator in filed this petition his in which he asked us to mandate re- spondent judge expunge already in orders made said judge cause prohibit Circuit Court and to said making any from further orders therein. We issued a temporary prohibition. writ of
To situation, appears summarize the factual charging the affidavit the offense was first filed City Court. plea When the defendant entered guilty by jury and demanded a trial the cause was City continued in charging Court and an affidavit the defendant with the same offense was filed Circuit Court. The affidavit was still City plea Court when the in abatement was filed Circuit City Court. The Court was plea dismissed after filed, in abatement was but upon before it (overruled). was ruled *4 charged The offense in the affidavits above mentioned is Replacement, defined Burns’ 1940 (b).1 §47-2001 1 “Any person who person drives a vehicle while such is intoxicating liquor under drugs the influence of or of narcotic guilty Upon shall be of conviction, a criminal offense. first person punished such shall be a fine not ten of less than
649 penalties for second severe provides more The statute question did in The affidavit subsequent convictions. or however, subsequent conviction allege a or not second might inflicted be penalty which so that than or more not charged fine of $100 awas offense or months both. six more imprisonment for not than City The Court second class. city is Evansville jurisdiction given with city concurrent of said of the laws cases of violations in Court all Circuit provided penalty therefor the State where imprisonment fine of exceed a $500 cannot months, exceeding both. or either or Burns’ six City Supp.), Replacement (1951 §4-2402. finally authority dispose therefore, Court, had full court, subject filed in defendant’s said right statutory appeal. original, juris courts are courts exclusive
Circuit equity, cases and in diction in all at law criminal except cases and actions for divorce where ex- jurisdiction elusive or concurrent is or Replacement, otherwise conferred. Burns’ 1946 In earlier it was City cases asserted that courts §4-303. jurisdiction of charged have exclusive the offense and that these affidavits circuit courts do not have jurisdiction settled, thereof. It has however, been that do courts circuit the offense charged. Basson v. State Stearn v. State
N. E. 101 N. E. 2d 67.
It has been held Indiana from the earliest times generally, pendency and it held of a criminal ($10.00) nor dollars more than one ($100), hundred dollars or by imprisonment county jail or state farm for a deter- period (10) days minate of not than ten less nor more than months, (6) imprisonment. six or both such fine and . .
650 offense, defendant, against for same a
action at not court, jeopardy has where in another defeat a tached, available to is not no It constitutes competent jurisdiction. court of (1854), 5 ground Dutton v. for abatement. 347; 533; Pe 22 Ind. Ind. Hardin v. The State 33; 35, Koepke (1901), N. E. Head Ind. 59 ters v. 156 692, N. E. 170 Ind. 168 lee v. State 201 664; Law, p. 433; S., E. 22 §427b(3), N. C. J. Criminal 1918A, p. 38. L. R. A. Vanderburgh seem, therefore, if the
It would acquire jurisdiction did of the Circuit Court cause filing court, by the the affidavit in that it must be Replacement, Burns’ 1942 which because of §9-908, reads follows: offenses, public except murder, “All treason and may prosecuted court, in the circuit or criminal time, except affidavit filed in term in all cases prosecution by when indictment or affidavit for pending the same offense is at the time of the may of such affidavit. And such affidavit be filed in time, only vacation time as in term approval arraign but with the judge court, of such who time, may and admit bail as in term or guilty plea proceed receive a in term time. forthwith as (Acts 1905, p. ch. §118, p. 411).”2 ch. §4, right
The statute would seem to foreclose state’s to file this in the Circuit Court while the affida- charging vit City the same offense was Court, unless the only statute has reference to indict- 2 superseded §§1747, 1748, This statute Burns’ Rev. Stat. 1901, providing prosecution by affidavit and information. Prosecution pro- affidavit is substituted for the information vided old code. Cole v. State N. E. 796. at Court pending in the Circuit affidavits merits or filing. time the new 593, N. E. 2d Rogers (1937), 212 v. State
In Vigo Circuit' Court filed affidavit was manslaughter. involuntary charging defendant with charging an indictment filed affidavit was When *6 pending in the offense was the same defendant with the quashed and later indictment was court. The same affidavit, filed. abatement, was the plea to addressed unambiguous statute—says it quotes opinion The plea in abatement' that the demurrer —and holds be noted that It should have been overruled. should court in which filed in the affidavit that case was pending. indictment was 185 N. E. Ind.
Alstott v. State 205 charges involving the same filed in another case was rape. for The defendant had been indicted court. day that the affida- dismissed the same
indictment was filed, vit, prosecuted, upon the defendant was was which days although the affidavit had been sworn two that, It held the affidavit was filed. was before showing contrary, to the of an affirmative absence presumed affidavit would proper. was Hall
In the earlier case of v. State 178 N. E. the defendant was convicted charging per- him with Court on an affidavit Circuit jury. pleaA filed and a in abatement had been demur- sustained, the trial court rer thereto and that action of assigned plea error. The asserted that after the was grand convened, jury and was in affidavit was filed the defendant; days, failed indict the session grand jury that while the was session the defendant Mayor was under an affidavit filed arrest on before Vincennes, charge, on the identical and was released pre- Mayor appearance before the on for his bond pend- hearing. “An liminary said indictment The court ing court constitutes in another for the same offense action, ground even abatement of a criminal no for the jurisdiction to other court has determine where such appears to have been affidavit cause.” The Mayor before the affidavit in the Circuit Court when the Although only filed. indirect reference to the sec- was made, tion under consideration was this court did hold pendency Mayor that the at before the time the affidavit was filed in the Circuit Court would deprive jurisdiction. the Circuit Court
In Lee v. State 134 N. E. City defendant was convicted in the Court of Muncie liquor of a violation of appealed laws. He to the again Circuit Court and was convicted. In the Circuit pleaded Court he grand in abatement that the jury was in session when City the affidavit was filed in the Court. A plea demurrer to the was sustained. The defendant *7 upon relied Acts ch. which, §118, before amendment in read as follows: public offenses, except “All murder, treason and may by prosecuted court, circuit or criminal time, affidavit filed in term except in all cases grand jury when the is in prosecution session or a by indictment or affidavit for the same offense is at time of the of such affidavit.” The court there held that the statute must be con- fined to cases filed in the circuit courts, and criminal which power empanel grand to call juries. Act,
Sec. 118 of the now under consideration, which authorizes of offenses in the circuit or crim- inal court therein, affidavit filed was followed §119, present Burns’ 1942 Replacement, §9-909, which, among things, other requires prosecuting at- affidavit, upon approval torney his to endorse made, provided any affidavit has been “(w)hen such Parish v. supplied) In (emphasis in the last section.” 786, the defendant E. 141 N. keeping a house city charged court with was appealed she judgment conviction ill-fame. From a quash the affida- to moved the circuit where she prosecutor to en- ground had failed that vit on the affidavit was approval No new dorse on the affidavit. his attention The court calls filed in the circuit court. ex- nowhere prosecuting attorney was
the fact that the required approval affidavits pressly his on to endorse court, although city approval re- such was filed in the or in the circuit crim- quired affidavits were filed when prosecut- holding approval of the In inal court. that ing attorney affidavits filed not be endorsed on need court, only city refers court indicates §118 or criminal courts. to affidavits circuit filed perhaps longer, years, For at least 35 com usage practice mon file this state has been to prosecutions
criminal in circuit and criminal like courts under those here. circumstances doing, practical particularly necessity for so larger population, apparent is so as to centers explanation unnecessary. make The statute re has thus practical ceived a construction the bench and bar of which, know, universal, this state so far as we has been knowledge ques and which has our been ever binding conclusively tioned. Such construction is not upon disregarded courts, only but it should be cogent J., Statutes, reasons, the most 59 C. §608; Jur., Statutes, State, Am. §§319, ex rel. Bill *8 (1912), “(A heimer 96 178 N. E. 801. code statute, procedure) penal of criminal it and spirit, must be construed a liberal in order to effectu- purpose systematize prac- ate its and co-ordinate the proceedings People tice and in criminal actions.” v. Bailey (1918), N. Y. S. 394. reaching consequences
The far of a different con apparent struction are alike undesirable. lan guage compel statute does not it. thinkWe placed upon the construction heretofore by by profession gen statute this court and erally right, and we adhere to it. holdWe that under the section of the statute now under consideration cases (except murder) may prosecuted treason and courts, except circuit or criminal by when a indictment or affidavit for the same offense is such courts at the time of the of a new affidavit. passing might
In say be well to two courts jurisdiction cases, of the same class of
may acquire jurisdiction person, of the same acquires where one jurisdiction of the two first subject person particular matter and in a jurisdiction case the becomes exclusive insofar as inter ference therewith the other court is concerned. The jurisdiction encroachment one on the of the other is of, legal within scope prohibition. a writ of Ferger ex rel. v. Circuit Ct. 227 Ind. 585; N. E. 2d State ex rel. Kunkel v. LaPorte Circuit Court 209 Ind. 200 N. E. State ex rel. Madison Circuit Court 138 N. E. 762. But city here the voluntarily relinquished has jurisdiction, and no contest as to exists be tween the two courts.
The relator asserts that the cause was filed in the circuit purpose court for denying him a trial jury court, city says and he the Constitution of Indiana, by guarantees Art. jury to him a trial in §13 city court. Art. §13, reads as follows: *9 prosecutions, accused shall “In criminal all impartial trial, by right public to a have county shall jury, been in which offense by committed; himself and coun- heard to be of the accusa- ; cause the nature and to demand sel thereof; copy to him, against to have a and tion face, have com- and to witnesses face meet pulsory obtaining his in process witnesses for favor.” a trial be denied cannot not been and
The relator has in him the by jury. accorded to must be Such offense, any, com county if was in which put the offense for on trial he mitted when charged. per- and
Temporary prohibition dissolved writ of denied. manent writ
Gilkison, J., dissents. C.
DISSENTING OPINION legislature has J.—In Indiana C. (cid:127)Gilkison, except by instituting prosecutions affidavit authorized grant- and murder. statute the offenses treason authority ing this is as follows: murder, offenses, except public treason and “All court,
may prosecuted criminal in circuit or be except time, by all cases filed in term affidavit by for indictment or affidavit when filing offense is at the time of the same affidavit. of such may time affidavit be filed vacation “And such approval time, only in term but with as judge arraign may court, and such who admit time, plea term or receive
to bail as in
guilty
proceed
term time.”
as in
forthwith
1905,
originally in
Acts
was enacted
This statute
by
p.
611. It was amended
§118,
Ch.
respect
only
p.
but
with
Acts
§4,
Ch.
being
vacation,
the last
the affidavit
quoted
Prior to the
above.
sentence
the statute as
required
prosecutions were
enactment of this statute all
grand
jury
indictment or
information
provided
the common law and
state
Art.
Indiana Constitu
national constitutions.
§13,
tion,
This
5th Amendment United States Constitution.
*10
derogation
being criminal,
com
and in
of the
statute
consistently followed in Indiana from 1816
mon law as
enactment,
strictly
must be
con
until
the date of its
against
in
of the defendant and
state.
strued
favor
(1906),
Lowry and Lewis
State v.
v. State
166 Ind.
372,
inclusive,
728,
N. E.
4 L.
A.
393 to 397
77
R.
(N.
528,
350;
S.)
9 Anno.
Hammell v.
Cas.
State
161;
(1926),
45, 52,
198 Ind.
152 N. E.
Ashbaucher v.
(1924),
604, 607,
775;
App.
Price
83 Ind.
145 N. E.
Squibb (1908),
488, 491, 492,
State v.
170 Ind.
84
E.N.
969;
146, 171,
(1931),
Pontarelli v. State
Ind.
203
176
630,
Kelley
612,
N. E.
v. State
If there is doubt as to whether the in statute question permit charging will an affidavit a crime or misdemeanor to be filed in the circuit court when the city (a same is court with full hear and determine the case here involved) against that doubt must be resolved state. controlling This court has reiterated additional law as follows: “ ‘Another fact to be considered is that statute, which, penal enactment, as a cannot .re- equitable construction, subject
ceive an is to be limited, meaning so far as the of its words are in doubt, by derogation the fact that it inis of the general exposition law. “The common rule in parliament this, all acts of is in all doubtful matters, general expression and where the is
657 con words) receive such a terms, they (the are to agreeable to the rules struction nature; law, statutes in cases of that common are not any make alteration presumed to than the act law, otherwise further or common does ’ Lowry (1905) v. expressly State declare.” Ind. 77 N. E. 166 and Lewis 728.” v. supra; (1933), 204 Ind.
Kelley v. State Luddington (1910), Ind. Chicago, etc., v. R. Co. Indianapolis 939; City Indian- E. 91 N. E. apolis 113 N. Water Co. Statutes, pp. §§402, 50 Am. also: Jur. 369. See Statutes, p. 1039. §617, J. 425 to 428. 59 C. Burns’ this case (§9-908, us
The statute before any There Replacement) not doubtful in sense. construction, nothing judicial requiring in it statute, were, procedure a criminal if there since it is give derogation of the common law we cannot something put equitable construction either legislature something out, in it the left or to take out legislature put Lowry of it in. State v. Lewis *11 State, supra. exception v. The contained the statute “except prosecution by as follows: when a indictment pending or affidavit for the same offense is at the time filing affidavit,” (my italics) the such must be of of given Rogers full force and effect. v. State 593, 594, exception Ind. 10 N. 2d 730. If this is E, given prosecution full force and effect the by respondent’s pursued affidavit court cannot be further, respondent judge because juris the is without Spurlock diction to entertain the case. State ex rel. v. 595, 597, Reeves 87 N. E. 2d It 725. accepted is an fact in this case that the when affidavit respondent 24, 1951, was filed in court on October prosecution pending for the same offense was in the by the state it filed was
city Evansville where court of city file in the on remained 1951. It on October ques- a serious October at least until court that pending in presented it not still whether is tion is prohi- statutory exception noted However, the court. by prosecution filing “when a an affidavit the of bits pending is the same offense affidavit for indictment or (My italics). filing such at the time the affidavit.” of at respondent’s court in case bar affidavit in The statutory unequivocally squarely within comes jurisdiction Respondents are without exception noted. matter, prohi- permanent and a writ to act bition should issue. city after court
Dismissal of the respondent’s (if court that affidavit in done) effect not and could not has been would enduing respondents jurisdiction in the with of then specifically denied case. That is very exception contained statute them prosecution by juris- affidavit. The that authorizes prosecution by always diction entertain affidavit exception. majority opin- been has limited this though destroys, exception, ion in substance as power repeal part within were of the court to of a legislative -things act that is in all This constitutional. controlling action in direct conflict with the rule Supreme announced the United States Court and fully adopted by our follows: “The fact must be remembered that the statute statute; are on to
we called construe is a criminal applicable that the rule to such statutes construction; is, that of strict the case must spirit letter, be within the as well as the rule, Marshall, statute. This said Chief Justice Wiltberger United States 5 Wheat. *76, *95, *12 Ed. 5 L. 37 ‘is the founded on tenderness rights individuals; the of law for on punishment power the principle, that plain the of judicial de- the legislative, not in in the is vested court, the legislature, not the partment. It is punish- its crime and ordain a to which is define strict the rule of that Endlich states Mr. ment.’ language shall be ‘requires that construction to fall shall be held that no cases so construed the the not fall both within it which do within meaning terms and within of its reasonable determine scope To spirit of the enactment. statute, its the intention of case is within that a language so; say court to but must authorize carry principle that a not admissible it is is of a statute the mischief is within case which punish crime provisions, far as to so its within not equal statute, it specified because those which atrocity character with kindred or of a characteristic, the differ- In this are enumerated. ence between constructions and strict liberal remedial letter of a clearly presented. statute same Whilst clearly within to cases be extended the act was the mischief and within reason vio- does designed cure, such construction unless the old language, a consideration lence to though proper remedy, law, the mischief and as other criminal as well in the construction statutes, bring enough a case in itself is not of stat- former class operation of the within given mean- utes; ing, clude language, properly its full their meaning, expressly in- must, that at least meaning ascertaining case; meaning go beyond plain court cannot the the , employed in search of phraseology words and End- certainly implied in them.’ not an intention Stat., lich, Interp. of §329.” Lowry State and Lewis v. supra. derogation of I can find when a statute far as So enacted, been the always it has the common law is rule that: legislature does presumed that “'It will be change any to make intend a statute beyond in ex- either what declares common law *13 implication. The press unmistakable terms or avoid such as to of á statute will construction beyond is change prior what laws any specific purpose act of the necessary effect authorities). question. (Many “ law and a statute the common . . When statute, gives place to the differ, law the common negative terms, couched only the latter is where repugnant clearly that it its is so where matter or negative. necessarily 1 Blackstone’s implies a exposition that statutes of *89. It is a rule Comm. principles presumed in reference to are to be construed law, it not to be is the common of any legislature innova- intended to make
(cid:127)that the upon than the case law further common tion required. that the absolutely act The rather infers law any alteration other intend to make did not has been specified, and what besides than what parliament had if had plainly pronounced, for naturally they have design, would it is said ” Dwarris, 695.’ expressed it. Statutes Luddington etc., Chicago, R. v.Co. being quoted
35, 42, 43, supra. paragraph (The last quotation (1850), 23 approved from Norton State v. 33.) N. L. J. only
The statute involved not does authorize prosecu- of a criminal affidavit when tion for the at time in a same offense competent jurisdiction exception court "of but prohibits expressly contained in the statute such filing. authorizing
We have a statute this court to issue prohibition of writs certain confine inferior courts jurisdiction. to their lawful §3-2201, 1946 Re- Burns’ placement. purpose of prohibi- this statute and of protect parties tion is to injury by from the unwar- usurpation ranted jurisdiction by of courts, and also protect dignity sovereign of the by pre- state serving judicial the integrity system of its prevent- ing unseemly controversy between co-or- and confusion applicable law dinate courts. This has stated the us, to the situation before thus: jurisdiction may “. . . Two courts of concurrent jurisdiction cases, the same class of may acquire jurisdiction person, same but acquires jurisdiction one of where the two first subject-matter person particular in a case, court becomes . exclusive. . the having jurisdiction particular case litigation, effectively segregates that from the case
general
class and excludes all other courts
like
jurisdiction
nection therewith.
assuming any authority
from
in con-
*14
orderly
Proper
administra-
compel
tion
courts
laws
these
to thus ob-
rights
other,
prevent
serve the
each
order to
unseemly,
dangerous
expensive and
conflicts of
”
jurisdiction
process.’
and of
(1936),
State ex
v.
rel. Kunkel
LaPorte Circuit Court
682, 694,
200 N. E.
State
rel.
ex
Cook v.
County
Circuit
Court Madison
et al.
20, 27,
against
express prohibition
of a statute
exceeding
its
may
prevented
be
”
by prohibition from this court.’
State ex rel.
Court, supra,
Kunkel v. LaPorte Circuit
p. 694, quoting Hayne v.
Justice’s Court
Cal.
citing
If there is any why reason the venue in the case involved in the two courts should be laid in the res- pondent court provides the law ample ways in which done, be but it must not accomplished an unlawful usurpation resulting and a jur- conflict of isdiction. prohibiting permanently
The writ should issue in the case in- proceeding further respondents from volved.
Note.—Reported
Vickery Indiana 28,883. Filed 1952.] June
[No.