Schaaf v. State
| Decision Date | 24 June 1943 |
| Docket Number | 27840. |
| Citation | 49 N.E.2d 539,221 Ind. 563 |
| Parties | SCHAAF v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Newton Circuit Court; R. R. Cummings Judge.
Crumpacker & Friedrick, of Hammond, for appellant.
James A. Emmert, Atty. Gen., Frank Hamilton and Frank E. Coughlin Deputy Atty. Gen., Chas. W. Gannon, Pros. Atty., of Crown Point, and Henry G. Doherty, Deputy Pros. Atty., of East Gary, for appellee.
This cause was instituted against the appellant by the return of an indictment in three counts by the Grand Jury of Lake County, Indiana. The defendant's motion to quash each count of the indictment was sustained as to counts one and two and overruled as to the third count. The appellant then appeared in open court, waived arraignment and pleaded not guilty. Thereafter, the venue of the cause was changed to the Newton Circuit Court on the appellant's motion.
On November 30, 1942, one Charles W. Gannon, who had been elected prosecutor of said Lake County but whose term of office would not begin until January 1, 1943, appeared in the Newton Circuit Court and filed a petition to be appointed special prosecuting attorney in this cause with full powers of the prosecuting attorney in the premises. To this petition the regularly elected and duly qualified prosecuting attorney of Lake County and the appellant each filed written objections. On December 4, 1942, a hearing was held on said petition and the objections thereto were sustained. Without any further motion or pleading Gannon was appointed by the court to prosecute this action on behalf of Lake County and the appellant was ordered to appear on December 9, 1942, to be arraigned and plead thereon.
When the appellant appeared in the Newton Circuit Court pursuant to said order, she was required to elect whether the further prosecution of the cause should be instituted in the Newton Circuit Court or in the Lake Criminal Court. She refused to elect and the court thereupon ordered that she be recognized to appear on the first day of the January Term of the Lake Criminal Court in Crown Point, Indiana, and fixed her bond in the sum of $2,000, to be approved by the Newton Circuit Court. The appellant tendered her bond which was approved and she was then released from the custody of the sheriff.
Thereupon the State, by Newell A. Lamb, acting prosecuting attorney for the 79th Judicial District (Newton County), and Charles W Gannon, counsel appointed by the court to prosecute this cause on behalf of Lake County, filed a motion to dismiss this cause for the following reason: 'The State of Indiana does not have sufficient evidence available at this time and can not have sufficient evidence available at this term of court to enable the State of Indiana to prove the offense charged in the indictment in the above entitled cause and the defendant in this cause has been held by recognizance to answer the indictment in this cause without trial during the January Term, 1942, and the April Term, 1942, of this court and during the elapsed portion of this term of this court, and if this term of this court is allowed to expire without the defendant in this cause being brought to trial the said defendant would be entitled to make application for her discharge and might be successful therein.'
The appellant objected to the granting of said motion, assigning as reasons therefor that said Lamb and Gannon who offered the motion had no legal status in the action; that the recognition of Lamb and the appointment of Gannon by previous order of the court were void; that the only person having control of the action and the discretion to dismiss was the regularly elected and duly qualified prosecutor of Lake County; that no sufficient ground for the dismissal of the action was stated in the motion; and that the grounds stated, together with the record, showed that the motion to dismiss was an effort to circumvent the operation of the three term statute. These objections were overruled by the court, the motion to dismiss was sustained and the cause was dismissed.
The September Term, 1942, of the Newton Circuit Court expired on December 12, 1942. Thereafter, on the 23rd day of January, 1943, the defendant filed in said Newton Circuit Court her verified motion to be discharged, alleging that the action of the court in dismissing the cause was void because the motion to dismiss was filed by Lamb and Gannon who were without authority; that said motion showed no cause for dismissal; and that said defendant had been held by recognizance to answer to the indictment for more than three terms of the court. On the motion of Edwin L. Robinson, the prosecuting attorney of Newton County, and of said Gannon, the defendant's motion for a discharge was stricken from the record.
From the action of the court in dismissing this cause and in striking appellant's motion for discharge from the records, the appellant prosecutes this appeal, assigning as errors the action of the Newton Circuit Court: (1) In overruling the motion of the appellant to quash the indictment; (2) in appointing Charles W. Gannon as counsel for Lake County, Indiana; (3) in recognizing Newell A. Lamb, acting prosecuting attorney of Newton County, in this cause; (4) in refusing to accept the waiver of the appellant, by her attorneys, of the reading of the indictment; (5) in refusing to accept the separate offer of the appellant by her attorneys to plead to the indictment in the absence of the appellant; (6) in requiring appellant to appear in person to be arraigned and plead in this cause; (7) in sustaining the motion of Gannon and Lamb to require the appellant to elect whether a threatened new prosecution should be instituted in Newton or Lake County; (8) in committing the appellant to the custody of the Sheriff of Newton County on December 9, 1942; (9) in requiring the appellant to furnish bond to secure the appearance of the appellant to threatened new prosecutions not yet filed; (10) in overruling the objection of the appellant to the motion of Lamb, acting prosecuting attorney of Newton County, to dismiss this cause; (11) in sustaining such motion to dismiss, and in dismissing this cause of action, over the objection of the appellant; and (12) in sustaining the motion of said Gannon and the prosecuting attorney of Newton County to strike the appellant's motion for discharge from the record and in striking said motion from the record.
The state has filed a motion to dismiss this appeal on the ground that this court is without jurisdiction because there was no final judgment against the appellant.
Sec. 9-2301, Burns' 1933 (1942 Replacement), § 2366, Baldwin's 1934, provides that a defendant may take an appeal from any judgment in a criminal action against him; and that upon the appeal any decision of the court or intermediate order, made in the progress of the case, may be reviewed. This statute has been interpreted as authorizing an appeal by a defendant only when there is a judgment against him. Musselman v. State, 1870, 33 Ind. 267.
Other courts have recognized the principle that appeals in criminal cases are not allowed for the purpose of answering abstract questions of law, but only for the purpose of redressing a wrong done to the defendant by some erroneous action of the trial court. In Commonwealth v. Graves, 1873, 112 Mass. 282, where a defendant appealed from an order discharging him, the court said: 'The defendant is not legally aggrieved by his discharge from custody, and therefore cannot appeal from the order of discharge.'
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