Neal v. State, 26926.

• Docket Nº: No. 26926.
• Citation: 14 N.E.2d 590, 214 Ind. 328
• Case Date: April 27, 1938
• Court: Supreme Court of Indiana

214 Ind. 328
14 N.E.2d 590

NEAL et al.
v.
STATE

No. 26926.

Supreme Court of Indiana.

April 27, 1938.

Vurtis Neal and Hugh Marshall were convicted of murder in the perpetration of a robbery, and they appeal.

Affirmed.

[14 N.E.2d 592]

Appeal from Shelby Circuit Court; Roscoe C. O'Byrne, Special judge.
Claude R. Henry, of Shelbyville, Gretchen H. Cole, of Vevay, and Warren M. Brown and Emerson J. Brunner, both of Shelbyville, for appellants.

Omer S. Jackson, Atty. Gen. and Jas. K. Northam, Deputy Atty. Gen., for the State.

SHAKE, Judge.

The appellants Vurtis Neal and Hugh Marshall were jointly indicted for the murder of William Bright by the grand jury of Shelby county. The first count of the charge was for murder in the first degree and the second for murder in the perpetration of a robbery. This appeal is prosecuted from a judgment of conviction on the second count. Fifty-three separate errors are assigned, all of which will be fully considered on account of the gravity of the punishment inflicted upon appellants.

Appellant Neal filed a separate motion to quash each count of the indictment, which was overruled. In support of the proposition that this constituted reversible error, it is pointed out that the back of the indictment was indorsed, ‘A True Bill,’ and signed, ‘Lawrence Coers, Foreman,’ but that between the indorsement and the signature of the foreman were the names of twelve witnesses for the state. It is claimed that this was not a compliance with the statute, and the indictment was therefore bad and should have been quashed. Burns' Ann.St.1933, § 9-901, section 2123, Baldwin's Ind.St.1934, provides that a grand jury indictment must ‘be indorsed by the foreman of the grand jury, ‘A true bill,’ and he must subscribe his name thereon as foreman.' (Our italics.) Denton v. State, 1900, 155 Ind. 307, 58 N.E. 74, 75, is authority for the statement that an indictment is clearly bad which is not ‘indorsed as a true bill over the signature of the foreman of the grand jury who returned it into court.’ (Our italics.) Applying the Denton Case to the statute, we cannot say that the indictment was not indorsed as a true bill or that the signature of the foreman was not properly subscribed thereto. We do not consider the listing of the names of the state's witnesses between the indorsement and the signature as a circumstance invalidating the charge. State v. Bowman, 1885, 103 Ind. 69, 2 N.E. 289.

At the end of the last page of the indictment appeared the following: ‘Recorded this 25th day of January, 1937. Russell M. Cherry, Clerk.’ And it was indorsed

[14 N.E.2d 593]

on the back: ‘Filed, Jan. 25, 1937. Nellie P. Hale, Clerk, Shelby Circuit Court.’ From appellants' brief we may assume that Russell M. Cherry was clerk of the grand jury that returned the indictment. Burns' Ann.St.1933, § 9-904, section 2126, Baldwin's Ind.St.1934, requires that the clerk of the court shall file and record all indictments and indorse thereon the date of such filing. Burns' 1933, § 9-810, section 2106, Baldwin's Ind.St.1934, provides that ‘the grand jury must select one of its number as clerk,’ etc., but there is no provision for filing the indictment with the clerk of the grand jury or that he shall indorse or sign it. The purported indorsement and signature of the clerk of the grand jury on the indictment may be regarded as surplusage, in no wise harmful or prejudicial to appellants. It afforded no ground for quashing the charge.

The appellant Marshall claims reversible error because the trial court denied his motion for a separate trial. The record discloses that before pleading to the charge Marshall presented a verified motion to the court alleging, in substance, that he had a separate and distinct meritorious defense to the alleged crime and that he felt that the jury could not justly weigh his defense with the evidence of his codefendant. He further stated therein that he was ‘contemplating a special plea.’ The motion did not disclose the nature of the special plea contemplated, nor did it contain any facts from which the trial court might have determined whether the petitioner's rights would be adversely affected by a joint trial beyond the assertions contained in the motion. No answer or counter affidavits were filed by the state, and the court denied Marshall's request for a separate trial.

Formerly, persons jointly charged with a felony were entitled to a separate trial, upon demand, Burns' 1933, § 9-1804, section 2284, Baldwin's Ind.St.1934, but this practice was changed by the Acts of 1935, c. 92, § 1, p. 286, Burns' 1933, § 9-1804 (Pocket Supp.), section 2284, Baldwin's May 1935 Supp., which provides: ‘When two (2) or more defendants are jointly charged with any offense, whether a felony or a misdemeanor, they shall be tried jointly, unless the court, in its discretion, on the motion of the prosecuting attorney, or of any defendant, or on its own motion, orders separate trials.’ There was consequently no error in the denial of Marshall's demand for a separate trial, unless it may be said that the trial court abused its discretion.

Judicial discretion is the option which the judge may exercise between the doing and the not doing of a thing, the doing of which cannot be demanded as an absolute right of the party asking it to be done. McFarlan v. Fowler Bank City Trust Co., Ind.Sup.1938, 12 N.E.2d 752. Discretion does not mean absolute or arbitrary power. It must be exercised in a reasonable manner, and not maliciously, wantonly, or arbitrarily to the wrong and injury of another. This is the rule applicable to courts while acting within their jurisdiction and the legal scope of their powers as fixed by law. Taylor v. Robertson, 1896, 16 Utah 330, 52 P. 1. Where a discretionary power is vested in a lower or inferior court, there must be a plain abuse of such power to the prejudice of the complaining party, in order to warrant the interference of this court on appeal. Detro v. State, 1853, 4 Ind. 200;Mead v. Burk, 1901, 156 Ind. 577, 60 N.E. 338.

In the absence of some showing of fact as a basis for the conclusion that Marshall's defense would be prejudiced by a joint trial, this court cannot say that the denial of his motion for a separate hearing was an abuse of discretion. The mere fact that the matter was heard on a verified motion, and that no counter affidavits were presented and no evidence heard, does not present such a situation as we can say that its denial was error. We must, in such a case, look to the facts brought to the notice of the court, undenied as they were, and from them determine whether they made out a plain abuse of the power conferred on the court by the express terms of the statute. It may be assumed that the special plea which Marshall contemplated had reference to the plea of insanity, which was entered immediately after a separate trial was denied. The record discloses that a like motion for a separate trial and a like plea of insanity were thereafter entered by Neal. This court cannot say, as a matter of law, that when two or more persons are jointly charged with crime, the fact that one or more of them contemplates, or does in fact enter, special pleas of insanity, will entitle either of them to a separate trial, in the absence of a showing of other facts disclosing that such denial amounted to an abuse of discretion on the part of the trial court. There was no error in denying appellants' motions for separate trials.

The appellant Neal filed his separate motion for a change of venue from the regular judge of the Shelby circuit

[14 N.E.2d 594]

court, which motion was sustained and a change of venue granted. Marshall objected to the filing of the motion and excepted to the granting of the same. The regular judge submitted the names of three prospective special judges. The state and Neal each struck off the name of one of the nominees and the court designated the appointment of the nominee whose name remained, but he declined to serve. The court thereupon submitted a second list of three names. Two of the names on the second list were on the previous list. This was proper. Shockley v. State, 1924, 194 Ind. 321, 142 N.E. 850. The state and Neal had each previously stricken one of the names resubmitted. The state again struck, but Neal refused to do so, whereupon the court directed the clerk of the court to strike for Neal. This was done and the Honorable Roscoe C. O'Byrne was appointed, and accepted. His name did not appear on the first list. Thereafter both Neal and Marshall filed separate and joint objections to the jurisdiction of Judge O'Byrne to serve. The objections set forth in detail the facts above recited, and charged that the appointment of the special judge was not in conformity with the practice or the statute, and that he was without jurisdiction. To keep his objections good, Neal declined to participate in the selection of the jury, assigning as his reason therefor that the court and the presiding judge had no jurisdiction over his person. Proper exceptions were reserved to all of the rulings relating to objections to the method of appointing the special judge and to his jurisdiction.

Neal's motion and affidavit for a change of venue from the judge was filed with and presented to the court on March 13, 1937. This date is important because chapter 290, Acts 1937, carrying an emergency clause, became effective at 4:45 p. m. on March 12, 1937. This act expressly repealed Burns' 1933, § 9-1302, section 2223, Baldwin's Ind.St.1934, which, prior thereto, had covered the subject of changes of venue from the judge in criminal cases. The act of 1937, referred to above, made no provision for the method of selecting special judges.

The General Assembly of 1937 passed another act relating to changes of venue from judges, applicable to civil and criminal cases alike. Acts 1937, c. 85, Burns' 1933, § 2-1430 (Pocket Supp.), section 2223-1, Baldwin's May 1937 Supp. It provides, among other...