Brown v. State, 27554.

CourtSupreme Court of Indiana
Citation37 N.E.2d 73,219 Ind. 251
Docket Number27554.
PartiesBROWN v. STATE.
Decision Date03 November 1941

[Copyrighted Material Omitted]

Appeal from Circuit Court, Wayne County; Gustave H Hoelscher, judge.

Oscar B. Thiel, of Gary, for appellant.

George N. Beamer, Atty. Gen., Walter O. Lewis Deputy Atty. Gen., and David Dennis, Pros. Atty., of Richmond, for appellee.

SWAIM Judge.

The appellant (defendant below) is appealing from a judgment of the Wayne Circuit Court, which judgment recited that 'The Court finds that said defendant is guilty of the crime charged, namely: First Degree Rape * * *.' The record shows that in the Wayne Circuit Court, at the April Term, 1940, an affidavit was filed against the appellant, charging him in the language of the statute with first degree rape at and in the County of Wayne, in the State of Indiana; that thereafter the prosecuting attorney filed a petition seeking the permission of the court to file an amended affidavit, which, instead of merely charging first degree rape in the language of the statute, would charge the crime of rape in the first degree by setting forth in said affidavit that the appellant 'unlawfully and feloniously made an assault and battery with intent to commit rape in the first degree in the County of Wayne and State of Indiana * * * and * * * unlawfully and feloniously and by force and violence and putting in fear take captive, restrain and detain the said affiant in said County of Wayne and State of Indiana, with the intent aforesaid, and did then and there unlawfully and feloniously carry off, kidnap and transport said affiant from said County of Wayne and State of Indiana, to the County of Union, State of Indiana, with the intent aforesaid; and did then and there in said County of Union and State of Indiana, unlawfully, feloniously and forcibly make an assault in and upon said affiant, a woman then and there being, and did then and there in said County of Union and State of Indiana, unlawfully, feloniously and forcibly and against said affiant's will ravish and carnally know her the said affiant.' This petition was granted and such an amended affidavit was filed.

The appellant is prosecuting this appeal on an assignment of errors which alleges (1) that the Wayne Circuit Court had no jurisdiction of the offense of rape in the first degree committed in Union County, of which offense the appellant was convicted, (2) that the Wayne Circuit Court had no jurisdiction of the offense of first degree rape alleged in the amended affidavit, which offense is alleged to have been committed in Union County, and (3) that the Wayne Circuit Court had no jurisdiction of the crime for which the appellant was convicted.

In the Wayne Circuit Court the appellant was represented by counsel. He filed no motion to quash the amended affidavit, but entered a plea of not guilty. He submitted to trial in the Wayne Circuit Court without objection. He, at no time, made an application to have the papers and proceedings certified and transmitted to the Circuit Court of Union County. He filed no motion in arrest of judgment. He did not advise the court of any reason why judgment should not be pronounced and he filed no motion for a new trial.

The evidence is not before us. The record material to the question which the appellant attempts to raise includes the prosecutor's petition to file an amended affidavit, the order granting the prosecutor's petition, the amended affidavit, the plea of not guilty, a statement that the trial was had and that the case was taken under advisement, and the finding and judgment of the court.

The appellant insists that this record sufficiently shows reversible error in that the amended affidavit charged the separate and independent offense of rape as having been committed in Union County and said amended affidavit was filed and a trial and conviction had thereon in Wayne County, contrary to Section 13, Article 1 of the Constitution of the State of Indiana , which provides: 'In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor', and also contrary to § 9-201, Burns' 1933, § 2010, Baldwin's 1934, which provides: 'Every criminal action shall be tried publicly in the county in which the offense shall have been committed, except as otherwise provided in this act.'

The state contends that the amended affidavit describes a continuing offense begun in Wayne County and finally consummated in Union, County, and that, therefore, the case was properly tried in Wayne County, under the authority of § 9-207, Burns' 1933, § 2016 Baldwin's 1934, which provides: 'When a public offense has been committed partly in one county and partly in another, or the act or effects constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in any one of such counties.'

Before proceeding to a determination of the question of whether the amended affidavit does allege such a continuing offense as to make a trial thereon in Wayne County legal, we must first determine whether this question can be raised for the first time on an assignment of error in this court, without having been raised in any manner in the trial court.

Prior to 1911, this court held that a defendant could assail the sufficiency of the affidavit and information for the first time in this court upon the ground that such pleadings by the State did not charge a public offense of which the court had jurisdiction. Barnett v. State, 1894, 141 Ind. 149, 40 N.E. 666; Naanes v. State, 1895, 143 Ind. 299, 42 N.E. 609. The court found the authority for this holding in the statute in the civil code, which provided that objections to a complaint, which were not taken by demurrer or answer, should be deemed to have been waived by the defendant, except only the objection to the jurisdiction of the Court over the subject of the action, and except the objection that the complaint did not state facts sufficient to constitute a cause of action. § 343, Revised Statutes 1881, and in the statute concerning criminal procedure which provided that 'In all cases where no special provision has been made in this act, the rules of pleading and practice in civil actions shall govern, so far as applicable.' § 9-2407, Burns' 1933, § 2395, Baldwin's 1934. In 1911 the former statute was amended to read, 'If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the Court over the subject of the action.' § 2-1011, Burns' 1933, § 115, Baldwin's 1934. Both the original and the amended statute carried a proviso which read, 'Provided, however, That the objection that the action was brought in the wrong county, if not taken by answer or demurrer, shall be deemed to have been waived.'

After said § 343, supra, was amended in 1911, it was suggested in the case of Robinson v. State, 1912, 177 Ind. 263, 97 N.E. 929, that since there was no longer any authority for assailing a complaint for want of facts for the first time by assignment of error in this court, it would seem to follow that the reason foer the rule permitting a like assault on an indictment or information had ceased. In later cases it was held that the right to assail an affidavit or indictment by independent assignment of error for the first time in this court no longer existed. Lay v. State, 1913, 180 Ind. 1, 102 N.E. 274; Lowery v. State, 1925, 196 Ind. 316, 147 N.E. 151, 148 N.E. 197. In the latter case there was an assignment of error that the facts charged in one count of the indictment did not constitute a violation of the law, and that the court had no jurisdiction of the subject of the action. The facts, however, as revealed in the opinion, show that the objection of the defendant therein was actually to the sufficiency of the affidavit and not to the jurisdiction of the court. We find no case decided since said amendment of said statute in 1911 in which there has been an assignment of error presenting for the first time on appeal the proposition that the court did not have jurisdiction because of the venue of the action.

It has been many times stated by this court that a judgment of a trial court which acted without jurisdiction was void; that it was an error which could not be waived; and that the question could be raised for the first time on appeal. Where in making such statements the court was speaking of general jurisdiction over the subject matter of the action, the statements were correct, because such general jurisdiction is essential to the power of the court to act. The court is given such jurisdiction only by the constitution or by a valid statute. Such general jurisdiction of the subject matter 'is not dependent on the existence of a good cause of action * * *; the sufficiency of the bill or complaint the validity of the demand * * *; plaintiff's right to the relief demanded, the regularity of the proceedings, or the correctness of the decision rendered.' 21 C.J.S., Courts, § 35, p. 45. This type of general jurisdiction is fixed by the framers of the constitution or by the legislature and is not a question between the parties. It is the type of jurisdiction which a party can not confer...

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  • Brown v. State, 27554.
    • United States
    • Supreme Court of Indiana
    • November 3, 1941
    ...219 Ind. 25137 N.E.2d 73BROWNv.STATE.No. 27554.Supreme Court of Indiana.Nov. 3, Luther Brown was convicted for first degree rape, and he appeals. Affirmed. [37 N.E.2d 75]Appeal from Circuit Court, Wayne County; Gustave H. Hoelscher, judge.Oscar B. Thiel, of Gary, for appellant. George N. Be......

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