Barber v. State, No. 24875.

Docket NºNo. 24875.
Citation149 N.E. 896, 197 Ind. 88
Case DateDecember 15, 1925
CourtSupreme Court of Indiana

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.

[149 N.E. 897]


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

[149 N.E. 898]

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...

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14 practice notes
  • State v. Holmes, Docket Nos. 81-1669-C
    • United States
    • United States State Supreme Court of Wisconsin
    • February 2, 1982
    ...Judicial District Court, 53 Nev. 444, 5 P.2d 535, 537 (1931); U'ren v. Bagley, 118 Or. 77, 245 P. 1074, 1077 (1926); Barber v. State, 197 Ind. 88, 149 N.E. 896 (1925); State ex rel. Anaconda Copper Mining Co. v. Clancy, 30 Mont. 529, 77 P. 312, 318 (1904); Annot., Constitutionality of Statu......
  • Snider v. Lewis, No. 171A21
    • United States
    • Indiana Court of Appeals of Indiana
    • November 23, 1971
    ...supplied.) Ind.Ann.Stat. Page 187 § 4--313 (Burns' 1968); Rooker v. Bruce (1908), 171 Ind. 86, 85 N.E. 351; Barber v. State (1925), 197 Ind. 88, 149 N.E. 896; Krutz v. Griffith (1879), 68 Ind. 444. The local rule of the Hancock Circuit Court attempts to change existing law as to what consti......
  • Smith v. State, No. 579S126
    • United States
    • Indiana Supreme Court of Indiana
    • July 6, 1981
    ...a party for the purpose of determining whether allegations of observable and demonstrable facts are true. In Barber v. State, (1925) 197 Ind. 88, 149 N.E. 896, the trial judge conducted a hearing to determine whether an allegation in an affidavit for change of judge was true and accurate. T......
  • State ex rel.. Ray v. Veneman, No. 26665.
    • United States
    • Indiana Supreme Court of Indiana
    • March 3, 1936
    ...Laselle v. Wells (1861) 17 Ind. 33;Krutz v. Griffith, Adm'r (1879) 68 Ind. 444;Krutz v. Howard (1880) 70 Ind. 174;Barber v. State (1925) 197 Ind. 88, 149 N.E. 896. Rules may be adopted prescribing when an application for a change of venue shall be made, and the mode and time of making the a......
  • Request a trial to view additional results
14 cases
  • State v. Holmes, Docket Nos. 81-1669-C
    • United States
    • United States State Supreme Court of Wisconsin
    • February 2, 1982
    ...Judicial District Court, 53 Nev. 444, 5 P.2d 535, 537 (1931); U'ren v. Bagley, 118 Or. 77, 245 P. 1074, 1077 (1926); Barber v. State, 197 Ind. 88, 149 N.E. 896 (1925); State ex rel. Anaconda Copper Mining Co. v. Clancy, 30 Mont. 529, 77 P. 312, 318 (1904); Annot., Constitutionality of Statu......
  • Snider v. Lewis, No. 171A21
    • United States
    • Indiana Court of Appeals of Indiana
    • November 23, 1971
    ...supplied.) Ind.Ann.Stat. Page 187 § 4--313 (Burns' 1968); Rooker v. Bruce (1908), 171 Ind. 86, 85 N.E. 351; Barber v. State (1925), 197 Ind. 88, 149 N.E. 896; Krutz v. Griffith (1879), 68 Ind. 444. The local rule of the Hancock Circuit Court attempts to change existing law as to what consti......
  • Smith v. State, No. 579S126
    • United States
    • Indiana Supreme Court of Indiana
    • July 6, 1981
    ...a party for the purpose of determining whether allegations of observable and demonstrable facts are true. In Barber v. State, (1925) 197 Ind. 88, 149 N.E. 896, the trial judge conducted a hearing to determine whether an allegation in an affidavit for change of judge was true and accurate. T......
  • State ex rel.. Ray v. Veneman, No. 26665.
    • United States
    • Indiana Supreme Court of Indiana
    • March 3, 1936
    ...Laselle v. Wells (1861) 17 Ind. 33;Krutz v. Griffith, Adm'r (1879) 68 Ind. 444;Krutz v. Howard (1880) 70 Ind. 174;Barber v. State (1925) 197 Ind. 88, 149 N.E. 896. Rules may be adopted prescribing when an application for a change of venue shall be made, and the mode and time of making the a......
  • Request a trial to view additional results

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