Gears v. State

• Decision Date: 30 March 1932
• Docket Number: No. 25274.,25274.
• Citation: 203 Ind. 400,180 N.E. 592
• Parties: GEARS v. STATE.
• Court: Indiana Supreme Court

203 Ind. 400

180 N.E. 592

GEARS

v.STATE.

No. 25274.

Supreme Court of Indiana.

March 30, 1932.

Appeal from Gibson Circuit Court; Claude A. Smith, Judge.

Omer Gears was convicted of petty larceny, and he appeals.

Reversed, with instructions.

W. D. Hardy and Oscar Lanphar, both of Evansville, for appellant.

Arthur Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.

TREANOR, J.

Appellant was prosecuted and convicted under an indictment in one count charging that on the 7th day of July, 1925, at Gibson county, Ind., “the defendant did unlawfully take, steal and carry away of the personal goods and chattels of one Jacob Reibold thirty-eight chickens of the value of forty-seven dollars and fifty cents ($47.50).” The jury found the defendant guilty of petit larceny, and assessed his punishment at disfranchisement for two years, a fine of $500, and imprisonment at the Indiana State Farm for a period of six months. Judgment was entered in conformity with the verdict.

Appellant filed his motion for a new trial, and assigns as sole error in this appeal the trial court's action in overruling his motion for a new trial. The causes specified in support of the motion for a new trial and the propositions urged under “Points and Authorities” present the same questions both as to admissibility of evidence and sufficiency of evidence to support the verdict as are presented in Gears v. State (No. 25154) 180 N. E. 585, decided by this court March 29, 1932; and the evidence, in so far as it is material to the questions of admissibility and sufficiency of evidence, is so nearly identical in the two cases that our discussion of, and holdings on, these questions in cause No. 25154 are adopted as a part of this opinion. This will enable us to limit our consideration to propositions V, VI, VII, and VIII under appellant's “Points and Authorities” and to the court's alleged errors in giving and refusing to give certain instructions.

The regular judge had presided in the trial of State of Indiana v. Gears, No. 1318 in the Gibson circuit court, and of his own motion made the following entry as a part of the record of the instant case: “The court having heretofore heard the case entitled ‘State of Indiana v. Omer Gears' involving practically the same evidence now appoints T. Morton McDonald, a reputable attorney at this bar as special judge to try said cause.”

Mr. McDonald accepted the appointment, and qualified. No objection was made to the appointment of Mr. McDonald, and no request that three persons be nominated by the regular judge. Mr. McDonald qualified on January 28th, and set the case for trial for February 25th. Defendant filed a motion to quash before Special Judge McDonald, which motion was overruled on the 17th day of February. On the 20th day of February the defendant filed his verified motion for a change of venue from the county, which motion was overruled on February 22d. The case was then reset for trial on March 29th. On April 5th defendant made an oral motion for continuance, and this motion was overruled.

On the 6th day of April the defendant filed his motion requesting that Special Judge McDonald remand the cause to the regular judge. The reason given was the failure of the regular judge to nominate and submit for striking a list of three names of eligible judges or members of the bar. The motion was overruled.

The defendant then filed a verified motion for continuance, which was granted, and the case was set for trial for April 17th. A further continuance was granted and trial set for May 12th; then for May 28th.

On May 25th defendant filed a motion for change of venue from the special judge on the ground of “bias, interest and prejudice,” and the motion was sustained.

The defendant then filed a motion asking the court to appoint a special judge, which motion was overruled. A motion for change of venue from the judge (i. e., regular judge) was then filed and overruled. The case was then heard by the regular judge.

The gist of appellant's propositions may be stated as follows:

(1) Since the regular judge was disqualified, it was error to appoint a special judge without nominating three persons.

(2) It was error for the special judge to overrule appellant's motion to remand the cause to the regular judge.

(3) It was error for the regular judge to overrule appellant's motion for appointment of a second special judge.

(4) It was error for the regular judge, after reassuming jurisdiction, to overrule motion for change of venue from the regular judge.

As stated above, the regular judge, acting upon his own motion, appointed a special judge to hear this cause. The statutes (section 1389 and sections 2235, 2236, Burns' Ann. Ind. St. 1926) authorize a circuit judge to appoint a judge pro tempore or a special judge. A circuit judge may appoint a judge pro tempore “if, from any cause,” the circuit judge is unable “to attend and preside at any term of said court, or during any day or part of such term;” and such judge pro tempore takes the same oath of office as a judge elected to said office; discharges all the duties, and is “invested with the same powers and authority as though elected to said office.” Sections 1389 and 1391, Burns' Ann. Ind. St. 1926. The statutes authorize the circuit judge to appoint a special judge to try a particular case, and only when the regular judge is disqualified for that particular case or in case of a change of venue from the regular judge on account of his bias or prejudice. Sections 2235-2239, Burns' Ann. Ind. St. 1926. It is clear that the regular judge (of his own motion) appointed Mr. McDonald special judge to try this case, and not judge pro tempore. The reasonable interpretation of the entry (supra, p. 593) is that the regular judge, by reason of his having heard the cause of State of Indiana v. Gears, No. 1318, which involved substantially the same evidence as the instant case, felt that he was biased on the question of defendant's guilt. The action of the court amounted to a voluntary granting of a change of venue on the ground of bias. Instead of naming Mr. McDonald as special judge, the regular judge should have nominated three competent and disinterested persons, and submitted their names to the prosecuting attorney and defendant for striking. Section 2236, supra. The method of selecting the special judge was irregular, and, if the defendant had objected and asked that the regular judge submit a list of three competent and disinterested persons, it would have been reversible error to have refused his request. But defendant made no objection to Mr. McDonald's appointment, and recognized his jurisdiction by appearing and making a motion to quash, a verified motion for change of venue from the county, and an oral motion for continuance. We see no reason why a defendant may not waive an irregularity in the method of taking a change of venue from the regular judge, or in the manner of selecting a special judge, if he should choose to do so with full knowledge of the extent and nature of the irregularity.

[1][2][3] But it does not follow that the waiver of irregularity must be attended by all the legal consequences which...