De Hart v. Blande
| Citation | 122 N.E.2d 90,233 Ind. 659 |
| Decision Date | 26 October 1954 |
| Docket Number | No. 29157,29157 |
| Parties | Paul DE HART, Appellant, v. Russell M. BLANDE, as Acting Warden of the Indiana State Prison, Appellee. |
| Court | Indiana Supreme Court |
James C. Cooper, Public Defender, Rushville, and Perry W. Cross, Deputy Public Defender, Muncie, for appellant.
Edwin K. Steers, Atty. Gen., Frank E. Spencer and Carl M. Franceschini, Deputy Atty. Gen., for appellee.
This is an appeal from a judgment for the appellee on a petition for a writ of habeas corpus. The facts were stipulated at the hearing, and involve proceedings had in the Criminal Court of Marion County, Division two (2).
On December 29, 1947, the state filed an affidavit in the trial court charging appellant with armed robbery, being entitled, 'The State of Indiana vs. Paul De Hart,' and numbered 4609Z. On February 11, 1948, in the same court the state filed another affidavit for armed robbery against appellant charging the same offense, entitled 'The State of Indiana vs. Paul De Hart,' and numbered 4644Z. On February 25, 1948, appellant pleaded guilty to this second affidavit, and upon it was sentenced for a determinate period of ten (10) years. This same day, on motion of the state, the first affidavit was dismissed.
Appellant contends that the second affidavit was filed in violation of § 9- 908, Burns' 1942 Replacement, 1 since the first affidavit had not been dismissed at that time, and therefore the second affidavit was void for want of jurisdiction under the statute. If this position be conceded for the purpose of this opinion, it still does not follow that appellant should prevail on his petition for the writ of habeas corpus.
The remedy afforded by a petition for a writ of habeas corpus in this sort of case is very limited, for Indiana adheres to the rule that Harris v. Souder, Ind.1954, 119 N.E.2d 8, 10.
The petition for the writ here is a collateral attack on the judgment of the Criminal Court of Marion County, Division two (2), for want of jurisdiction to enter the particular judgment. It is not a collateral attack upon some other prosecution in the same court, and the intrinsic record we are limited to is the record in the proceedings in which the judgment was entered. If appellant wishes to present his jurisdictional questions arising out of another prosecution he will have to pursue a different remedy.
Judgment affirmed.
On December 29, 1947, appellant was charged by affidavit regularly filed in the Marion Criminal Court, Division No. 2, with the crime of robbery while armed with a deadly weapon, as defined by Section 10-4709, 1942 Repl. and the cause was given No. 4609-Z in said court.
On February 11, 1948, another affidavit was filed in the same court, charging appellant with the same offense, in the same language as the first affidavit, and it was given No. 4644-Z in said court. At the time this affidavit was filed cause No. 4609-Z noted above, was pending in said court.
On February 25, 1948, appellant appeared in said court, plead guilty in said cause No. 4644-Z--being the affidavit filed on February 11, 1948--and was sentenced to the Indiana State Prison for ten years. Since that date appellant has been in the prison serving said sentence. After the plea of guilty was entered and judgment rendered thereon, but on the same day the charge against appellant as stated in cause No. 4609-Z was dismissed, or nolle prosequi by the state.
There is no dispute about the facts stated above. They were stipulated by the parties in the trial court.
This action in habeas corpus was brought in the Laporte Circuit Court, where upon trial, there was a judgment against appellant from which he appeals.
The only question presented in this appeal is as to the power of the Marion Criminal Court Division 2, to receive and act upon the second affidavit noted. We shall direct our attention to that question.
The Indiana Constitution provides:
'The Circuit Courts shall each consist of one Judge, and shall have such civil and criminal jurisdiction as may be prescribed by law.' Art. 7, § 8.
This section of the constitution gives the General Assembly the authority and duty to fix and define the extent of the jurisdiction of circuit and criminal courts and our court has definitely so held. Board of Com'rs v. Albright, 1907, 168 Ind. 564, 573, 81 N.E. 578; Board of Com'rs of White County v. Gwin, 1893, 136 Ind. 562, 576, 36 N.E. 237, 22 L.R.A. 402; Branson v. Studebaker, 1892, 133 Ind. 147, 149, 33 N.E. 98. Exercising this power and performing this duty, the General Assembly has authorized prosecutions by affidavit so far as applicable to this case, as follows:
'All public offenses, except treason and murder, may be prosecuted in the circuit or criminal court, by affidavit filed in term time, in all cases except when a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of such affidavit. * * *' (Our italics.) Sec. 9-908 Burns' 1942 Repl.Acts 1905, ch. 169, § 118, pp. 584, 611, Acts 1927, § 4, pp. 411, 415.
Prior to the enactment of this statute, the state was required to prosecute all crimes by indictment or information. Trisler v. State, Ind.1954, 120 N.E.2d 404.
By this statute the General Assembly expressly withheld jurisdiction or power from the circuit and criminal courts to prosecute three classes of cases by affidavit. These classes are: (1) treason, (2) murder, (3) and when a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of such affidavit.
In this case there is no question that at the time the second affidavit was filed on February 11, 1948, appellant was then being held by the affidavit filed December 29, 1947, charging him in the same court with the same offense, and that the court continued to so hold him on that affidavit for fourteen days after the second affidavit was filed. In this situation the Marion Criminal Court No. 2, was prohibited by the statute noted from accepting or taking any action whatever on the second affidavit. However, the court received and took action on the second affidavit and attempted to render a final judgment thereon, while the first affidavit was pending. All action so taken, including the final judgment, is not voidable, but is wholly null and void. Stevens v. State, 1952, 230 Ind. 518, 552, 105 N.E.2d 332; Rogers v. State, 212 Ind. 593, 594, 10 N.E.2d 730; Alstott v. State, 205 Ind. 92, 93, 185 N.E. 896. See also Haymond v. State, 1918, 187 Ind. 267, 269, 119 N.E. 5, and Trisler v. State, Ind.1954, 120 N.E.2d 404.
Of course a court must take judicial notice of its own record in a pending prosecution and it is not necessary for either party to make proof of a thing of which the court takes judicial notice. Zehrlaut v. State, 1951, 230 Ind. 175, 182, 102 N.E.2d 203 and cases there cited.
Notwithstanding the fact that the legislature, with the approval of this court has greatly limited 1, Section 3-1918 Burns' 1946 Repl., the right to habeas corpus guaranteed by the state...
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Hale v. State
...to the rule that in reviewing a writ of habeas corpus, courts are limited to the trial court's intrinsic record. De Hart v. Blande, 233 Ind. 659, 660, 122 N.E.2d 90, 91 (1954). A complaint for a writ of habeas corpus must specify (1) who is restraining the applicant's liberty, the place whe......
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Tahash v. Clements
...sentence, prescribed in the judgment of August 5, 1952, had expired. Habeas corpus was therefore the proper remedy. De Hart v. Blande, 1954, Ind., 122 N.E.2d 90, and cases cited therein; Witte v. Dowd, 1952, 230 Ind. 485, 102 N.E.2d If a prisoner is held in prison after the term for which h......
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State ex rel. Ross v. Lake Criminal Court, 0-706
...the accused was charged for a second time with the same statutory offense growing from the same transaction. See: De Hart v. Blande, Warden (1954), 233 Ind. 659, 122 N.E.2d 90 (armed robbery); State ex rel. Poindexter v. Reeves (1952), 230 Ind. 645, 104 N.E.2d 735 (driving under the influen......