Barber v. State, 24875.

• Decision Date: 15 December 1925
• Docket Number: No. 24875.,24875.
• Citation: 149 N.E. 896,197 Ind. 88
• Parties: BARBER v. STATE.
• Court: Indiana Supreme Court

197 Ind. 88

149 N.E. 896

BARBER

v.STATE.

No. 24875.

Supreme Court of Indiana.

Dec. 15, 1925.

Appeal from Circuit Court, Clay County; Thos. W. Hutchison, Judge.

Edward Barber was convicted of murder in an attempt to perpetrate robbery, and appeals. Reversed with directions.Henry W. Moore, Felix Blankenbaker, James P. Stunkard, and Victor O'Donnell, all of Terre Haute, for appellant.

Arthur L. Gilliom, Atty. Gen., for the State.

PER CURIAM.

The appellant, jointly with Joe Parker, was charged by indictment with the murder of Steven Kendall in an attempt to perpetrate a robbery. He was tried separately by a jury, was found guilty, and sentenced to death. Refusing to permit him to file a special plea of insanity and overruling his motion for a new trial are assigned as errors.

The sufficiency of the indictment as against an objection that it does not state facts sufficient was upheld in Parker v. State (Ind. Sup.) 149 N. E. 59. On the authority of that case, the contention of appellant that the verdict was contrary to law because the indictment failed to charge the offense of murder in the first degree committed in the perpetration of a robbery is overruled.

On defendant's application the venue was changed from Vigo to Clay county, where the transcript was filed on the 16th of April, 1924, and the record recites that on said day the defendant, in person, appeared in open court, and, in reply to questions as to whether or not he wished counsel assigned to defend him, stated that he was being defended by certain attorneys of Terre Haute; that he was thereupon arraigned and entered a plea of not guilty, whereupon the cause was set for trial 10 days later; that on proper motion a continuance was granted for the purpose of taking depositions; and that the cause was reset for trial on May 5, 1924. But on April 26, 1924, being the date on which it was originally set for trial, the court made an entry that, “Come the parties by counsel and this cause is declared at issue,” no other proceedings in the cause at that time being recorded. And the record further recites that on the morning of May 5, 1924, the defendant being present in person and by his counsel, the regular panel of the jury for the May term was placed in the box, pursuant to the order and direction of court, by way of preparing to begin the trial, whereupon defendant moved for the publication of certain depositions, and they were ordered published; and that thereupon the defendant presented and filed his motion for a change of venue from the judge, in the customary statutory form, with the additional averment that the defendant “makes and files this verified motion, at the earliest time possible, after his having learned of said bias and prejudice of said judge against him.” This motion was sworn to under that date before the clerk of the court. The record then recites as follows:

“And the court having heard and inspected the evidence presented for and against said motion, and being sufficiently advised in the premises, finds that said motion is presented for the sole purpose of delaying the trial of said cause, and not in the interest of justice and a fair trial; that the motion and affidavit as presented is a violation of rule 32 of the Clay circuit court of Indiana, in that it does not contain any facts whatever showing that the cause for the change of venue was not discovered until after the day fixed by the rule for the filing of an application for such a change; that the court finds, from an inspection of the affidavit itself and other evidence presented, that the motion and affidavit for a change of venue was prepared some time in advance of the day on which the cause was set for trial, and that it was not filed as soon as was reasonable after the discovery of the cause, if any, for a change of venue, and was withheld from record for the purpose of making it impossible to secure a special judge in time to proceed with the trial at the time heretofore fixed by the court for the same to commence. *** The motion and affidavit is therefore overruled, to which ruling the defendant took an exception at the time.”

As set out in several bills of exceptions, rule 32 of the Clay circuit court reads as follows:

“32. In addition to all other requirements, all applications for change of venue from the judge or county must be filed so that at least five full days will intervene between the day the application is filed and the day on which the cause is set for trial, except where the cause for the change is not discovered until after the day fixed by the rule for the filing of the application, when the motion must be made as soon as is reasonably possible after such discovery, and the facts showing the same must be set out in the affidavit in support of the application, to the satisfaction of the court.”

[1][2] Circuit courts may adopt rules for conducting the business therein not repugnant to the laws of the state. Section 1443, Burns' 1914; section 1323, R. S. 1881; Magnuson v. Dillings, 152 Ind. 177, 180, 52 N. E. 803;State v. Van Cleave, 157 Ind. 608, 62 N. E. 446. And their power to limit the time within which a motion for a change of judge may be presented is subject only to the exception that such a motion cannot be rejected for that cause when the reason for asking a change was not known in time to comply with the rule. Spencer v. Spencer, 136 Ind. 414, 36 N. E. 210.

[3][4][5] But to the defendant alone, and not to the judge, is committed the determination of the question whether or not he shall have a change of venue because “he believes that he cannot receive a fair trial, owing to the bias and prejudice of the judge against him.” Section 2074, Burns' 1914; section 203, ch. 169, Acts 1905, p. 628. And where a proper affidavit is filed that also states facts which, if true, show that it was not possible to comply with a rule of court regulating the filing of such motions, the court is without authority to reject the motion, or to overrule it because the judge concludes from facts known to him that it “is presented for the sole purpose of delaying the trial of said cause,” or that it “was prepared in advance of the day on which the cause was set for trial,” or that the sworn statement in support of the motion is untrue, and that it “was not filed as soon as was reasonable after the discovery of the cause, if any for a change of venue.” If the Legislature had intended to leave the trial judge, accused by the defendant of having such bias and prejudice against him that defendant could not have a fair trial, the authority to determine whether or...