Burns v. State
| Decision Date | 25 October 1922 |
| Docket Number | 24,027 |
| Citation | 136 N.E. 857,192 Ind. 427 |
| Parties | Burns et al. v. State of Indiana |
| Court | Indiana Supreme Court |
From Kosciusko Circuit Court; Lemuel W. Royse, Judge.
Prosecution by the State of Indiana against Joe R. Burns and others. From a judgment of conviction, the defendants appeal.
Affirmed.
L. R Stookey, Jas. F. Fardy, Clarence S. Darrow and William J Reed, for appellant.
U. S Lesh, Attorney-General, Mrs. Edward Franklin White and Harley A. Logan, for the state.
OPINION
The four appellants were jointly indicted in Marshall county, Indiana, on the charge that on December 29, 1920, they unlawfully killed and murdered Jacob Russell Saine, by shooting him in the perpetration of a robbery, committed by forcibly and feloniously putting in fear the cashier and other employes of the State Exchange Bank of Culver, Indiana, and taking from them a sum of money. No question as to the sufficiency of the indictment is presented by appellant's brief. Appellants were convicted and after unsuccessfully moving for a new trial and in arrest of judgment perfected an appeal.
A ruling by the trial court upon a motion for a change of venue or a motion to remand the cause after the venue had been changed, if erroneous, is cause for a new trial, under the first subdivision of § 2158 Burns 1914, Acts 1905 p. 584, § 282, and may not be separately assigned as error. Walb v. Eshelman (1911), 176 Ind. 253, 260, 94 N.E. 566; Wilson v. Johnson (1894), 145 Ind. 40, 42, 38 N.E. 38, 43 N.E. 930; Ewbank's Manual (2d ed.) § 134.
The motion for a new trial specified as error sending the cause to Kosciusko county upon sustaining a motion to change the venue, refusing to send it to Starke county, overruling appellant's motion to modify the order granting such change so as to direct that it be sent to Starke county, the giving of certain instructions, the refusal to give certain others, and that the verdict is not sustained by sufficient evidence and is contrary to law.
The motion in arrest of judgment sought to question the jurisdiction of the Kosciusko Circuit Court presided over by the regular judge of that court, Hon. Lemuel W. Royse, because Hon. Albert Ward, of the Miami Circuit Court, had been appointed as special judge, upon motion of appellants for a change of judge, before they asked and were granted a change from Marshall county. There is nothing in this point. By filing verified objections to the presiding judge in Marshall county, appellants caused him to be superseded by a special judge, who took his place, with all the power and jurisdiction which he had before possessed, and no more. Acts 1915 p. 30, § 2075 Burns' Supp. 1921.
And upon the filing by appellants of a motion for a change of venue from the county, and the entry of an order by the special judge sustaining such change and sending the cause to another county having a different regular judge, the special judge had no more right to follow the cause and preside at the trial there than the regular judge of the Marshall Circuit Court would have had if the motion for a change of venue from the county had been presented to him. He would have had no jurisdiction after the venue was changed.
In their verified motion for a change of venue from Marshall county appellants stated that prejudice against them also existed at Rochester, in Fulton county, but that Knox is only thirteen miles from Culver and connected with it by good gravel roads, and is easily accessible by rail from Culver, and that all the witnesses live either at Culver or at Knox, and asked that the cause be sent to Starke county for trial. With this motion appellants filed the affidavits of thirty-one residents of Center township, in Starke county, each of whom stated that the defendants and the state could have a fair and impartial trial in that county. Neither the motion nor any of the affidavits stated that appellant Byers had lived for many years with his mother at Knox, in Starke county, and that all of the defendants had met at Knox, the night before the attempted robbery, and after remaining there over night had driven directly to Culver, though such facts appear from the record, without contradiction. The statute prescribes "the most convenient county" as the one to which the venue shall be changed. § 2078 Burns 1914, Acts 1905 p. 584, § 207.
But the judge to whom the application is presented exercises a judicial discretion in determining to what county a cause shall be sent, and his decision will only be set aside for manifest abuse of discretion. No such abuse is shown by the record in this case.
Eleven days after the special judge of the Marshall Circuit Court had entered an order that the venue be changed and the cause sent to Kosciusko county for trial, appellants filed with him a motion to modify such order, and to send the cause to Starke county, for certain alleged reasons. It appears that the transcript on change of venue had not yet been filed in the Kosciusko Circuit Court, and was not filed there until five days later. It may well be doubted whether a court which has made a final and unconditional order, upon proper application, that the venue of a cause be changed to a court in another county, can revoke that order on the ex parte application of one party, without the consent of the other. But, however that may be, no abuse of discretion in overruling the motion is shown. The mere fact that a murder had occurred in Kosciusko county after the change of venue was ordered was not sufficient to entitle appellants to a trial in Starke county, which their motion demanded.
There was little conflict in the evidence. It showed that Byers had lived in Knox, Indiana, all his life of 21 years; that he frequently drove a truck to Chicago; that he met Fox there six months before the date of the robbery and murder, and three or four times thereafter, and talked with him about plans to rob the bank at Culver every time they met; that Byers asked Fox to get two men to assist them, and Fox notified him by long distance telephone when they would reach Knox; that after remaining all night in Knox the party drove in two large automobiles, obtained in Chicago, to a point two or three miles northwest of Culver, where they left one car and drove to Culver in the other car. All were armed with revolvers, and they had planned what each should do, two of them being assigned to guard the persons found inside the bank, one to gather up the money, one to stay with the car, and one to watch in the lobby and run in and out while the money was being taken. The bank officials and a customer were compelled, by violence and threats of killing them, to stand in a back room with their faces to the wall and their hands up. Several thousands of dollars were carried out from the vault and laid on a table near the door, and one of the men put into his pockets a package of bills and some loose cash which he found in the safe. An alarm having been given, the fire whistle was blown and the citizens who inquired about the supposed fire were told by telephone that the bank was being robbed. Many persons with guns collected near the bank, including Mr. Saine, who was the fire chief, and operated a store not far from the bank, on the other side of the street. He came out of his store with a rifle and walked down opposite the bank, where he pointed his rifle at the driver of the car and spoke to him. The driver had climbed in behind the steering wheel, and another of the robbers ran out and jumped in the back part of the car. Just before or just after the car was started, one or more shots were fired from inside the bank, and two or more from inside the car, toward Mr. Saine, and he fell mortally...
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