Green v. State, 28827
| Decision Date | 06 February 1952 |
| Docket Number | No. 28827,28827 |
| Citation | 230 Ind. 400,103 N.E.2d 429 |
| Parties | GREEN v. STATE. |
| Court | Indiana Supreme Court |
T. Ernest Maholm, Indianapolis, for appellant.
J. Emmett McManamon, Atty. Gen., John Ready O'Connor, William T. McClain, Deputies, Indianapolis, for appellee.
In 1942 the appellant was charged in the Lake Criminal Court with the crime of murder. The venue was changed to the Porter Superior Court. He was there tried and found guilty of murder in the second degree and sentenced to imprisonment for life. In March 1951 he instituted this proceeding by way of petition for writ of error coram nobis. The core of his contention, as therein asserted for the first time, is that the Porter Superior Court never acquired jurisdiction to try the case because the motion for change of venue from the county was verified, not by him, but by his attorney.
Burns' 1942 Repl. § 9-1301 reads 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. * * *'
In McHargue v. State, 1923, 193 Ind. 204, 136 N.E. 316, the defendant was charged with murder in the first degree. A motion for change of judge, verified by defendant's attorney, was filed and overruled. It was held that the verification by the defendant's attorney was insufficient and it was not error to overrule it. That part of the statute above quoted was then and ever since has been in effect.
But from the fact that the court is not required to grant a change of venue where the motion therefor is verified only by the defendant's attorney, and not by the defendant himself, it does not follow that if a change is granted upon such a motion the court to which the cause is venued and in which the case is tried must be held to have been without jurisdiction.
If jurisdiction did not exist, the judgment was void. Bledsoe v. State, 1945, 223 Ind. 675, 64 N.E.2d 160, 161. But jurisdiction is one thing and venue is another. Venue is procedural and statutory provisions concerning it may be waived. Ibid. See also: Brown v. State, 1941, 219 Ind. 251, 37 N.E.2d 73, 137 A.L.R. 679, Annotation 686.
By the motion for change of venue, which was filed on the day the cause was set for trial in the Lake Criminal Court, it was made to appear that the defendant could not have a fair and impartial trial in Lake County because of the bias and prejudice of the citizens of said county against him. The record shows that after the motion was filed the cause was venued to the Porter Superior Court, a court of competent jurisdiction, 'by agreement of parties.' Thus it appears that the defendant not only proceeded to trial in the Porter Superior Court without questioning the regularity of the steps leading up to the transfer, but by agreement the cause was venued to the county in which it was tried.
It would savor of absurdity to say, where a change of venue was invoked by a motion...
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