Bledsoe v. State

• Citation: 64 N.E.2d 160,223 Ind. 675
• Decision Date: 20 December 1945
• Docket Number: 28121.
• Parties: BLEDSOE v. STATE.
• Court: Supreme Court of Indiana

64 N.E.2d 160

223 Ind. 675

BLEDSOE v. STATE.

No. 28121.

Supreme Court of Indiana

December 20, 1945

Appeal from Boone Circuit Court; Frank Hutchinson, Judge.

Ira M. Holmes, of Indianapolis, Elza O. Rogers, of Lebanon, and Charles R. Swaim, of Newcastle, for appellant.

James A. Emmert, Atty. Gen., and Frank E. Coughlin, First Asst Atty. Gen., for appellee.

RICHMAN Judge.

Appellant was one of three defendants held to answer a joint indictment for murder in the Criminal Court of Marion County. While the others were on trial the court on appellant's motion ordered the venue as to him changed to Boone county, the order directing that a certified copy of the indictment, in lieu of the original, be delivered with the transcript to the clerk of the Boone Circuit Court. After a five day jury trial with verdict of guilty appellant, for the first time, by motions in arrest of judgment and for a new trial raised the question, now before us, that without delivery of the original indictment to the court below it did not acquire jurisdiction. There is support for this contention in early Indiana cases. If they are sound they should be followed, otherwise overruled.

When an accused voluntarily appears or is held on warrant to answer an indictment or affidavit filed in a court which has the power to hear and determine his guilt of the kind of offense with which he is charged, the court has jurisdiction. These elements of jurisdiction--subject matter and person--may not be waived. But the procedural steps by which jurisdiction is invoked are not themselves jurisdictional and, generally speaking, may be waived. 'Venue in its modern and municipal sense relates to and defines the particular county or territorial area within the state or district in which the cause or prosecution must be brought or tried. It commonly has to do with geographical subdivisions relates to practice or procedure, may be waived, and does not refer to jurisdiction at all.' Paige v Sinclair, 1921, 237 Mass. 482, 130 N.E. 177, 179. See also 67 C.J. 12. The court seems not to have observed the distinction between jurisdiction and venue when the cases cited by appellant, and supplemented by our own research, were establishing the rule upon which appellant relies. The line of cases began in 1845 with Doty v. State, 1845, 7 Blackf. 427, and stopped rather abruptly in 1883 with Keith v. State, 1883, 90 Ind. 89, although in two comparatively recent cases, State v. Mabrey, 1927, 199 Ind. 276, 157 N.E. 97, and Tokacs v. State, 1930, 202 Ind. 259, 173 N.E. 453, there is language seeming to assume the validity of the rule. Intervening cases are listed chronologically as follows: Engleman v. State, 1850, 2 Ind. 91, 52 Am.Dec. 494; Sawyer v. State, 1860, 16 Ind. 93; Pulling v. State, 1861, 16 Ind. 458; Adell v. State, 1870, 34 Ind. 543; Bailey v. State, 1872, 39 Ind. 438; Fawcett v. State, 1880, 71 Ind. 590; Leslie v. State, 1882, 83 Ind. 180; Duncan v. State, 1882, 84 Ind. 204; Powers v. State, 1882, 87 Ind. 144; Bright v. State, 1883, 90 Ind. 343. Not all of them apply the rule. In some it is recognized by way of dictum. In Bright v. State, supra, the court reached the unusual conclusion that the original affidavit for change of venue is not an original paper within the meaning of the change of venue statutes.

Doty v. State, supra, was decided at a time when the procedure on change of venue in a criminal case was governed by the 1824 statute applying to civil cases. See R.S.1838, pp. 601-603. Then no transcript on change of venue was required. It was the clerk's duty 'to send forward the papers in said suit, by some meet person employed by such clerk to such court having jurisdiction in similar cases * * * and the court to which such papers are sent, shall be and is hereby vested with full power, authority and jurisdiction * * *.' The court stated that there was nothing in the record to show that the indictment was ever filed in the court to which venue was transferred, and though there was a transcript (not required) containing a copy of the indictment the court lacked jurisdiction. If jurisdiction did not exist, of course the judgment was void. And there the court should have stopped but it seemed to think it necessary to assign as a further reason for reversing the judgment error in the charge to the jury.

The Doty case is the only pertinent authority cited in Sawyer v. State, supra, decided after the 1852 Revision which contained procedural requirements applying only to criminal cases. These are found in 2 R.S.1852, p. 371, §§ 78 and 79, and 2 Gavin & Hord, p. 406. The sections have been amended in several respects but occupy the same relative positions in all subsequent revisions. See §§ 1771 and 1772, R.S.1881, and §§ 9-1305 and 9-1306, Burns' 1942 Replacement. Most of the cases above cited were decided while either the 1852 or 1881 Revisions was in force. There has been no change in the following language in § 78, supra: 'The clerk must thereupon make a transcript of the proceedings and order of court, and having sealed up the same with the original papers, deliver them to the sheriff, who must without delay deposit them in the clerk's office of the proper county, and make his return accordingly.' This sentence was followed immediately by § 79, reading: 'The jurisdiction of the latter court is complete, and the cause must be docketed and stand for trial at the first term.' The proximity of these two sentences may have led the court to believe that strict compliance with the former was a condition precedent to the acquisition of jurisdiction. This, we think, was unnecessarily read into the statute. It is just as logical to believe that the legislative intent behind the words: 'The jurisdiction of the latter court is complete * * *.' was to make clear that the court to which the case was transferred should have as complete jurisdiction as the court from which it came. The legislature could not have been unmindful of the provisions in both the 1816 and 1851 Constitutions that '* * * the accused shall have the right to a public trial * * * in the county in which the offense shall have been committed * * *.' Art. I, § 13 of each Constitution. And of the statutory provisions that the indictment must be returned in that county and that 'every criminal action must be tried in the county where instituted, except when otherwise provided * * *.' See 2 R.S. 1852, p. 370,§ 75, and § 9-201, Burns' 1942 Replacement. In view of these provisions, assurance that the court receiving the case on change of venue should have 'complete' jurisdiction may have been thought necessary. Other than this proximity of the two sections the only reason which suggests itself to us, and it is not stressed in the cases, is the court's disposition during those years to treat statutory procedural requirements as mandatory and not directive.

Even while this rule was becoming established the court in several cases recognized that venue was procedural and that the statutory provisions might be waived. In Bosley v. Farquar, 1827, 2 Blackf. 61, the court said:

'In reviewing those proceedings, we can not but perceive that the objection to the jurisdiction of the Washington Circuit Court comes too late. If the venue had not been regularly changed, or not changed at all, from Orange to Washington, this matter should have been rectified in the Washington Circuit Court before any other proceedings were had in the case. As no objection was then made, nor in fact made at any time in that Court, none can avail here.'

Again in Burnham v. Hatfield, 1838, 5 Blackf. 21, Judge Blackford said:

'This suit was commenced in Allen county, and removed by a change of venue to Huntington.

'There are some objections made to the form of the order for the change of venue, but they come too late. They were waived by pleading to the action in the Huntington Circuit Court.'

From Clark v. State, 1853, 4 Ind. 268, we quote:

'It was competent for the Rush Circuit Court to grant a change of venue in the cause back to the Henry Circuit Court, upon a proper application. It did grant such change, and the defendant consented to it, and afterwards appeared in the cause in the latter Circuit Court. If there was anything irregular, therefore, in the manner of taking the change, it was waived by the defendants.'

See also Wall v. State, 1864, 23 Ind. 150, 155; App. v. State, 1883, 90 Ind. 73. In O'Brien v. State, 1890, 125 Ind. 38, 25 N.E. 137, 9 L.R.A. 323, the opinion discloses doubt of the necessity of filing the original papers and a belief that the failure so to file was an irregularity susceptible of correction and one that might be waived.

Soon thereafter came Burrell v. State, 1891, 129 Ind. 290, 28 N.E. 699, 700, wherein jurisdiction was questioned because of a defective transcript from the Jackson to the Orange Circuit Court. The court said:

'When the change of venue was granted, and the cause ordered transferred to the Orange circuit court, it became the duty of the clerk of the Jackson circuit court to make and transmit a correct transcript, together with the files. Whenever he learned in any manner that he had forwarded an imperfect transcript, he had the right, and it was his duty, to correct his mistake, and thus comply fully with the order made. It is therefore not material whether the Orange circuit court was or was not authorized to make an order requiring him to do his duty. It is not denied that the last transcript is correct and complete.

'In our opinion, if the appellant was in a position to raise the question, it would not avail him. We think, however, he is precluded by the record from raising this point, even if there was any merit in it. The record of the Orange circuit court shows, as above...