Beck v. State, 29964

• Decision Date: 25 January 1961
• Docket Number: No. 29964,29964
• Citation: 241 Ind. 231,171 N.E.2d 696
• Parties: Earl Issac BECK, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 696

171 N.E.2d 696

241 Ind. 231

Earl Issac BECK, Appellant, v. STATE of Indiana, Appellee.

No. 29964.

Supreme Court of Indiana.

Jan. 25, 1961.

R. M. Rhodes, Peru, for appellant.

Edwin K. Steers, Atty. Gen., Richard M. Givan, Asst. Atty. Gen., Richard C. Johnson, Dep. Atty. Gen., William L. Morris, Pros. Atty., Fulton County, Rochester, for appellee.

LANDIS, Judge.

Appellant was charged with being an accessory after the fact to second degree burglary and after a trial by jury was convicted and sentenced for a period of two to five years. He appeals from the judgment.

Appellant on this appeal contends the court below erred in overruling his application for change of judge.

The relative facts pertaining to this matter follow. The affidavit charging appellant in this case was filed on December 1, 1959. On December 4, appellant appeared in person and by counsel and waived arraignment and entered plea of not guilty. On January 5, 1960, the cause was set for trial before a jury for January 12, 1960. On January 9, 1960, appellant made and filed affidavit for change of judge which in addition to alleging bias and prejudice of the judge stated:

'That he [appellant] could not make this affidavit and application for a change of venue from the judge within the time fixed by the rule of said court for the reason that he had no knowledge of said interest, bias and prejudice of said judge until the 9th day of January, 1960, and that he makes this affidavit at the first opportunity and on the first day of court after he learned said facts.'

On January 11, 1960, a hearing was had on appellant's application for change of judge and the State of Indiana called appellant to the witness stand concerning the matters contained in his affidavit for change of venue and after hearing evidence the court made the following order:

'* * * Upon the defendant's [appellant's] testimony that no new facts were learned by him on January 9, 1960, as set out in his affidavit, the Court now overrules the defendant's affidavit for change of venue from the Judge.'

Appellant contends that in a criminal case if a motion for change of judge is in proper legal form and alleges it was made and filed as soon as the bias and prejudice of the judge were ascertained, it was error for the court to deny the change of judge, there being no discretion on the part of the court to exercise in considering the change of venue, citing: Asher v. State, 1926, 198 Ind. 23, 29, 152 N.E. 171, 174.

Appellee however cites the Act of 1905 as amended in 1927 ¹ (providing for granting of change of judge) and states that the amendment intended the trial court should have some discretion in granting the change where an affidavit is not presented in the ten day period therein provided. Such statute with the 1927 amendment italicized is as follows:

'The defendant may show to the court, by affidavit, that he believes he can not receive a fair trial, owing to the bias and prejudice of the judge against him, or the excitement or prejudice against the defendant in the county or in some part thereof, and demand to be tried by disinterested triers. Any affidavit for change of judge shall be filed at least ten days before the day set for trial or if a date less than ten days ahead is set for trial then such affidavit shall be filed within two days after the setting of the case for trial.' (Our emphasis.)

Without passing on whether discretion was intended to be given by such Act of 1927, it will be noted that such statute does not specifically deal with the question of the recent learning of prejudice as set forth in appellant's affidavit.

Rule 1-12B of this Court which, although it is not applicable to criminal cases, does make the following provision for change of venue after the time prescribed for such rule for...