State ex rel. Berry v. Beecher

• Decision Date: 29 November 1960
• Docket Number: No. 29934,29934
• Citation: 241 Ind. 353,170 N.E.2d 425
• Parties: STATE of Indiana, on Relation of Ralph BERRY, Prosecuting Attorney for the 43rd Judicial Circuit, Relator, v. Samuel E. BEECHER, Jr., Special Judge of the Vigo Circuit Court, Respondent.
• Court: Indiana Supreme Court

Page 425

170 N.E.2d 425

241 Ind. 353

STATE of Indiana, on Relation of Ralph BERRY, ProsecutingAttorney for the 43rd Judicial Circuit, Relator, v.Samuel E. BEECHER, Jr., Special Judge of the Vigo Circuit Court, Respondent.

No. 29934.

Supreme Court of Indiana.

Nov. 29, 1960.

Rehearing Denied Feb. 14, 1961.

Ralph E. Brill, N. George Nasser, Terre Haute, for appellant.

Samuel E. Beecher, Jr., Terre Haute, pro se.

JACKSON, Judge.

This is an original action, growing out of a criminal prosecution by affidavit of one Jack William Martin in the Vigo Circuit Court on two counts charging assault and battery on a child, being cause No. 19822 on the dockets of the Vigo Circuit Court.

The relator sought a temporary writ of mandate and prohibition against the defendantSamuel E. Beecher, Jr., as Special Judge, requiring him to stay the proceedings in said cause, to expunge from the record all entries made since March 1, 1960, to prohibit him from making any further entries other than to sustain the relator's motion for a change of venue from the Special Judge and further to show cause why such writ should not be made permanent.The temporary writ, in the alternative, was issued April 6, 1960.

Respondent first contends that the 'Complaint in Mandate' should be dismissed and the temporary writ heretofore issued be dissolved for failure of the relator to comply with Supreme Rule 2-35, in that it does not contain certified copies of all the pleadings, orders and entries pertaining to the subject matter in issue.This contention is disposed of by the case of State ex rel. Spurlock v. Reeves, 1949, 227 Ind. 595, 597, 87 N.E.2d 725, 726, wherein this court said: 'The petition of the relatrix fails to comply with Rule 2-35 of this court.However, this was cured by the respondent's return, setting out the certified copies of all pleadings, orders, and entries pertaining to the subject-matter, and therefore this action is being decided upon its merits.'

The record pertinent to the issues here shows that an affidavit was filed against Jack William Martin on April 15, 1957; respondent qualified as Special Judge October 6, 1959; on October 23, 1959, defendant, Martin was permitted to withdraw a former plea of not guilty in order to file a motion to quash the affidavit; on December 10, 1959, respondent sustained defendant Martin's motion to quash the affidavit and gave the State until December 17, 1959, to file an amended affidavit.On January 6, 1960, the respondent Judge stated his reasons for sustaining the motion to quash; relator gave notice of intention to appeal, and the defendant Martin was released on bond.Thereafter, on February 29, 1960, relator filed an amended affidavit and an affidavit for change of venue from the Special Judge.Thereafter on March 14, 1960, the affidavit for change of venue was overruled; on March 31, 1960, the defendant Martin filed a motion to dismiss the affidavit filed April 15, 1957, and for release from bond, hearing on which was set for April 7, 1960.

The respondent in essence raises these questions:

1.The right of the State to file the amended affidavit after December 17, 1960.

2.The right of the State to file the amended affidavit after giving notice of intention to appeal from the sustaining of the defendant's motion to quash.

3.The right of the State to obtain a change of venue from the special judge in the manner and at the time the affidavit for such change was filed.

These questions we answer affirmatively as follows:

1.On the...