Neely v. State

• Decision Date: 28 February 1924
• Docket Number: Nos. 24359,24360.,s. 24359
• Citation: 194 Ind. 667,142 N.E. 852
• Parties: NEELY v. STATE. LEE v. SAME.
• Court: Indiana Supreme Court

194 Ind. 667

142 N.E. 852

NEELY

v.STATE.^*

LEE

v.SAME.

Nos. 24359, 24360.

Supreme Court of Indiana.

Feb. 28, 1924.

Appeal from Criminal Court, Marion County; Harry O. Chamberlain, Special Judge.

John Neely, Harry Lee, and another, were jointly convicted of keeping a room for gaming, and the named defendants separately appeal. Judgments affirmed.Holmes & McCallister, of Indianapolis, for appellants.

U. S. Lesh, Atty. Gen., and Mrs. Edward F. White, Deputy Atty. Gen., for the State.

MYERS, J.

We have examined and compared the records and briefs of counsel filed in connection with the above-entitled appeals, and have reached the conclusion that no good purpose will be subserved by writing an opinion in each case. Hence, for the purposes of an opinion, these cases are consolidated.

Appellants and one other person were jointly charged by indictment, tried at the same time, and convicted of unlawfully keeping a room used and occupied for gaming, in violation of section 2466, Burns' 1914. Their separate motions for a new trial were overruled, and judgment followed in accordance with the verdict of the jury. They prosecuted separate appeals, but rely upon like assignments of error and causes for the reversal of the judgment against them.

The several reasons presented and urged in support of their several assignments are: (1) The court's action in refusing to grant each of them a separate trial; (2) want of jurisdiction of the special judge over the person of appellants; (3) error of the court in admitting certain evidence on behalf of the state; and (4) the verdict of the jury was contrary to law.

[1] Referring to the first insistence, it appears that appellants' codefendant, in the court below, sought and obtained a change of venue from the regular judge. A special judge was appointed before whom appellants appeared and, without objection, entered a general plea of not guilty, and at the same time moved the court in writing for separate trials. This motion was overruled. Appellants insist that this ruling was erroneous and harmful to them, because they were compelled to go upon trial before a special judge whose appointment was not occasioned by any act of either of them, and before whom they were not willing to be tried. Their argument in support of this contention proceeds upon the theory of a constitutional right to a trial before an impartial tribunal, and that a change of judge on account of his bias and prejudice is a personal privilege. It is true appellants did not ask for a change of judge, neither did they object to such change, nor did they bring to the attention of the trial court any reason why they could not have a fair and impartial trial before him, nor do they here suggest anything tending to show a hostile attitude toward them by the presiding judge. Moreover, if appellants had been granted separate trials, such ruling would not have reinvested the regular judge with jurisdiction over their persons or the subject-matter of the action, as seems to be the thought of appellants.

[2] The offense charged was a misdemeanor, and the right to a separate trial by parties so jointly charged is a matter for the exercise of judicial discretion. In the instant case appellants fall far short of showing an abuse of that discertion. Hence, we hold that appellants' insistence is...