Shockley v. State

Decision Date26 February 1924
Docket NumberNo. 24364.,24364.
Citation142 N.E. 850,194 Ind. 321
PartiesSHOCKLEY et al. v. STATE.
CourtIndiana Supreme Court


Appeal from Criminal Court, Marion County; Emsley Johnson, Special Judge.

George Shockley and Roy Travis were convicted of keeping a room for gaming, and they appeal. Affirmed.Eph Inman, Henry Spoon, and Edwin Steers, all of Indianapolis, for appellants.

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


This is a prosecution by indictment against the appellants George Shockley and Roy Travis and another, for a violation of section 2466, Burns' 1914. The charging part of the indictment is that-

“The grand jurors of Marion county, state of Indiana, upon their oaths present that George Shockley and Roy Travis and *** on or about the 8th day of January, A. D. 1922, and continuously since that time up to and including the 1st day of September, A. D. 1922, did then and there in the county of Marion and state aforesaid, unlawfully and knowingly keep a room on the second floor of a certain building, commonly known as 2129 1/2 East Washington street, in the city of Indianapolis, in said county and state aforesaid, to be used and occupied for gaming.”

Each defendant waived arraignment and entered a plea of not guilty. A trial by jury resulted in the following verdict:

We, the jury, find the defendants guilty, as charged in the indictment, and that each be fined in the sum of $500 and imprisoned in the county jail-Indiana State Farm-for a period of 30 days.”

After a motion for new trial had been made and overruled, judgment was entered upon this verdict, and from such judgment the appellants appeal. Each appellant made a separate assignment of errors, and each appellant has filed a separate brief herein.

The questions presented for the consideration of this court are: (1) Did the lower court err in overruling the separate and several motion of the appellants objecting to the appointment of and qualification of Emsley W. Johnson as special judge? (2) Did the lower court err in overruling appellants' separate and several motion for a separate trial? (3) Did the lower court err in changing the venue of this cause as to the appellant Travis from the regular judge upon the separate motion of his codefendant, George Shockley? (4) Did the lower court err in permitting the introduction of evidence tending to show the reputation of the place alleged to have been kept as a gaming house?

[1] Section 2075, Burns' Supp. 1921, provides for the selection and appointment of a special judge in a criminal case where a change of venue is taken from the judge. After providing that if the prosecuting attorney on behalf of the state and the defendant shall agree in open court upon some judge or member of the bar of any court in this state to try such cause, it shall be the duty of such court to appoint such judge or attorney so agreed upon to try such cause. In this case the prosecuting attorney and the defendant did not agree on a special judge, and the statute provides that-

“In the absence of such agreement, it shall be the duty of the court within five (5) days to nominate five (5) competent and disinterested persons, each of whom shall be an available judge or member of the bar of this state, to be submitted to the parties in the action from which the state of Indiana, by the prosecuting attorney, for the plaintiff's side and the defendant or defendants, within two (2) days thereafter may strike off two (2) of such names, each. The court shall thereupon appoint such person who shall remain unchallenged to preside in said cause. *** And, if the person so appointed, if not a regular judge, if he consent to serve, such attorney shall be qualified as other judges and his appointment and oath shall be filed with the clerk and entered on the order book and he shall have power to hear and determine such cause until the same is finally disposed of.”

The record shows that on the 9th day of March, 1923, appellant George Shockley filed an affidavit for change of venue from the Honorable James A. Collins, judge of the criminal court of Marion county, which was on the same day sustained and five names submitted to the parties from which to strike in the selection of such judge. As a result of such striking off of names, the name of James E. Deery was left. The trial of the cause was set for the 15th day of March, 1923, and, the said James E. Deery having notified the judge that he could not sit as special judge in that case at the time set because he would be absent from the city, the judge of the criminal court, without objection of the defendants or either of them, then submitted five other names of persons possessing the qualifications required of a special judge, and two names having been struck off by the prosecutor and two by the defendants, left the name of Emsley W. Johnson, to be selected as special judge and the said Emsley W. Johnson, on March 13, 1923, was by the judge of the criminal court of Marion county legally appointed as special judge to try said cause. Said Emsley W. Johnson accepted such appointment and was duly qualified and assumed jurisdiction over said cause. We have examined each of the briefs and have examined the part of them in which the record is set out, and we find no legal objection pointed out to the appointment of said Emsley W. Johnson as such special judge, and we know of no such objection. The lower court did not err in the appointment of said special judge.

[2] Each of the appellants allege that the trial court erred in overruling their separate and several motion for a separate trial. Section 2135, Burns' 1914, provides:

“When the indictment or affidavit is for a felony charged against two or more defendants jointly, any defendant requiring it, before the jury is sworn, must be tried separately.”

See Acts 1905, p. 640, § 259. This is a reenactment of section 1822, Revised Statutes 1881, except that in the act of 1905, the word “affidavit” is substituted for the word “information.” Prior to the act of 1881, this provision of the statute read as follows:

“When two or more defendants are indicted jointly, any defendant requiring it, must be tried separately.”

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