Shular v. The State

Decision Date09 February 1886
Docket Number12,606
Citation4 N.E. 870,105 Ind. 289
PartiesShular v. The State
CourtIndiana Supreme Court

From the Montgomery Circuit Court.

Judgment affirmed.

W. H Thompson, W. B. Herod and J. West, for appellant.

A. B Anderson, F. M. Howard, G. W. Paul, J. E. Humphries and W. W Thornton, for the State.


Elliott, J.

The appellant was jointly indicted with James Cunningham for the murder of William Lane. There were separate trials, and the appellant was convicted of manslaughter.

The trial court entertained a motion by Cunningham for a change of judge and made an order for a change at a time when the appellant was not present, and this ruling is assigned for error.

In our judgment the ruling was not erroneous. The statute expressly provides that parties jointly indicted may sever in their defences and may demand separate trials. The application for a change of judge by Cunningham was a declaration that he desired to sever in his defence, and that was a declaration he had a right to make whether the party jointly indicted with him was or was not present. It is not necessary for a party who claims a right to sever to make an explicit declaration of his election; it is sufficient if his acts are such as indicate an election to be separately tried.

One of two defendants jointly indicted has a right to apply for a change of venue, and the effect of granting the order is to sever the defences, leaving the defendant who does not apply for a change to be tried in the court where the indictment was found, and carrying the trial of the other defendant to the court to which the cause was ordered upon his application. State v. Carothers, 1 Greene, Iowa, 464; State v. Martin, 2 Iredell, 101; State v. Wetherford, 25 Mo. 439; Hunter v. People, 1 Scam. 453; John v. State, 2 Ala. 290; 1 Bishop Crim. Proced., section 75: Wharton Crim. Pl. and Pr. (8th ed.), sec. 602.

In Brown v. State, 18 Ohio St. 496, it was held that a change of venue upon the application of one of several defendants was proper, and that it operated as a severance. The court there said: "It seems quite clear to us that a motion by one of two persons jointly indicted, for a change of venue as to him alone, necessarily involves and includes a motion for a separate trial; and that the granting of such motion necessarily involves and includes the granting of a separate trial also."

As the motion made by Cunningham for a change of judge necessarily involved the declaration of an election to be tried separately, it follows that the appellant was not entitled to demand that he should be present when it was made and acted upon, since that matter concerned his co-defendant alone. Where there is a severance, it is not necessary that all who are jointly indicted should be in court when orders are made that affect one only of the defendants. It is, indeed, held by respectable courts, that the defendant need not be present when an application for a change of venue is made in his own behalf. State v. Elkins, 63 Mo. 159; Hopkins v. State, 10 Lea, 204; Rothschild v. State, 7 Tex. Ct. App. 519. This rule is in harmony with the decision in Epps v. State, 102 Ind. 539, 1 N.E. 491, that a defendant need not be present at the hearing of motions, although he must be present on the trial. There are authorities supporting this doctrine, among them, State v. Jefcoat, 20 S.C. 383; State v. Fahey, 35 La. Ann. 9; State v. Clark, 32 La. Ann. 558; State v. Harris, 34 La. Ann. 118. We need not, however, go further in this instance than to declare that one of two defendants jointly indicted may apply for a change of judge, that the application involves a declaration of a demand for a separate trial, and that the presence of the person jointly indicted with the defendant, at the time the application is made or ruled on, is not required.

It is within the discretion of the trial court to direct the employment of counsel to assist the prosecuting attorney in conducting a trial against a person accused of felony. Wood v. State, 92 Ind. 269; Siebert v. State, 95 Ind. 471; Tull v. State, ex rel., 99 Ind. 238; Bradshaw v. State, 17 Neb. 147, 22 N.W. 361; State v. Montgomery, 65 Iowa 483, 22 N.W. 639.

The trial court did the appellant no legal injury in appointing counsel to assist the prosecution, nor was there anything said in announcing its rulings upon that question, which trenched upon any of the appellant's rights. It is a mistake to suppose that one jointly indicted with another has a right to a joint trial; on the contrary, at common law the prosecution might demand separate trials, and under our statute any defendant may demand that a separate trial be awarded him. The court, when justice requires it, may suggest in express words the propriety of separate trials.

The court, on the motion of the appellant, sent the jury to inspect the premises where the homicide was committed, and did not direct that the defendant should be present when the inspection was made; but no request was made by the defendant that he should be allowed to be present, nor was there even a suggestion to the court that he desired to accompany the jury; nor did he, although he was present when the jury left the court-room, ask that he be permitted to go with them; nor did he object in any manner to their making the inspection. But the record shows more than this, for it shows that the court directed the attention of the defendant and his counsel to the statute, and stated that it required the consent of the parties, and inquired if they consented to the order, to which inquiry, as the record recites, the defendant's counsel responded "by renewing their request, and defendant indicated his assent."

Many authorities are cited by counsel in support of the general principle that the defendant must be present when evidence is given against him, and that this is the general rule we have no doubt; but the question here is whether the case is within the rule, not what the general rule is. Whether the case is within this general rule must depend upon the provisions of our statute and the conduct of the appellant.

Our statute provides that "Whenever, in the opinion of the court and with the consent of all the parties, it is proper for the jury to have a view of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person, other than the officer and the person appointed to show them the place, shall speak to them on any subject connected with the trial."

This statute does not intend that the view of the premises where a crime was committed shall be deemed part of the evidence, but intends that the view may be had for the purpose of enabling the jury to understand and apply the evidence placed before them in the presence of the accused in open court. Deferring, for the present, the consideration of the authorities, and reasoning on principle, we shall have no difficulty in concluding that the statute does not intend that an inspection of a place where a crime was committed shall be taken as evidence. It can not be seriously doubted that evidence can only be delivered to a jury in a criminal case in open court, and, unless there is a judge, or judges, present, there can be no court. The statute does not intend that the judge shall accompany the jury on a tour of inspection; this is so obvious that discussion could not make it more plain. The jury are not, the statute commands, to be spoken to by any one save by the officer and the person appointed by the court, and they are forbidden to talk upon the subject of the trial. It is the duty of the jurors to view the premises, not to receive evidence, and nothing could be done by the defendant, or by his counsel, if they were present, so that their presence could not benefit him in any way, nor their absence prejudice him. The statute expressly provides who shall accompany the jury, and this express provision implies that all others shall be excluded from that right or privilege. It is quite clear from these considerations, that the statute does not intend that the defendant or the judge shall accompany the jury, and it is equally clear that the view obtained by the jury is not to be deemed evidence.

Turning to the authorities we shall find our conclusion well supported. The statute of Kansas is substantially the same as ours, except that it does not, as ours does, require the consent of all of the parties, and in a strongly reasoned case it was held that it was not error to send the jury, unaccompanied by the defendant, to view the premises where a burglary had been committed. Brewer, J., by whom the opinion of the court was prepared, said, in speaking of the statute: "Nothing is said in it about the presence of the defendant, the attorneys, the officers of the court, or the judge. On the contrary, the language seems to imply that only the jury and officer in charge are to be present. The trial is not temporarily transferred from the court-house to the place of view. They are 'to be conducted in a body' 'while thus absent.' This means that the place of trial is unchanged, and that the jury, and the jury only, are temporarily removed therefrom. Just as when the case is finally submitted to the jury, and they 'retire for deliberation,' there is simply a temporary removal of the jury. The place of trial is unchanged. And whether the jury retire to the next room, or are taken to a building many blocks away, the effect is the same. In contemplation of law the place of trial is not changed. The judge, the clerk, the officers, the records, the parties, and all that go to...

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