State ex rel. Burk v. Sparks, 25800.

• Decision Date: 30 April 1931
• Docket Number: No. 25800.,25800.
• Citation: State ex rel. Burk v. Sparks, 202 Ind. 463, 176 N.E. 8 (Ind. 1931)
• Parties: STATE ex rel. BURK v. SPARKS et al.
• Court: Indiana Supreme Court

202 Ind. 463

176 N.E. 8

STATE ex rel. BURK

v.SPARKS et al.

No. 25800.

Supreme Court of Indiana.

March 24, 1931.

Dissenting Opinion filed April 30, 1931.

Original proceeding by the State, on the relation of Frank Burk, for a writ of prohibition to Will M. Sparks and the Wayne Circuit Court.

Temporary writ made permanent.

Pickens, Davidson, Gause, Gilliom & Pickens, of Indianapolis, for relator.

ROLL, J.

The state of Indiana, on the relation of Frank Burk, filed his petition in this court for a writ of prohibition, and upon consideration of the same a temporary writ was issued, and the respondent was ordered to appear and show cause why the writ should not be made permanent.

The petition herein shows, that the relator Frank Burk was, on April 3, 1928, charged by affidavit in the Wayne circuit court with the offense of driving an automobile while under the influence of intoxicating liquor. That said defendant obtained a change of venue from the regular judge, and that E. Ralph Himelick was appointed special judge to hear and determine said criminal action. That said Himelick qualified and assumed jurisdiction, and tried said cause on June 4, 1928. That he took said cause under advisement till October 22, 1928, when he announced his decision and sentenced the defendant. That said defendant filed his motion for a new trial on said day, after judgment had been entered.

That on May 28, 1929, the Hon. Gustave H. Hoelscher, who was regular judge of the Wayne circuit court, on his own motion entered an order in said criminal action, which recited the facts alleged in the petition herein and as above set out, and further stated that, when defendant filed his motion for a new trial, the same was set for hearing and argument on November 5, 1928, and defendant released on his former bond.

Said order further recited that the said Himelick failed and neglected to appear on said 6th day of November, 1928, to hear and rule on said motion for a new trial, and has ever since failed and neglected to appear and hear the same.

Said entry ordered and directed that another special judge be selected and appointed to assume jurisdiction of said cause, and then nominated Will M. Sparks, judge of Rush circuit court, G. Edwin Johnston, judge of Fayette circuit court, and Alonzo M. Bales, judge of Randolph circuit court, and ordered the state of Indiana to strike off one of said names, and the defendant to strike off one of said names, and stated that the court would thereupon appoint such person who should remain unchallenged as special judge in said cause, and set the hearing on said motion for a new trial for June 5, 1928.

The petition herein further alleges that the defendant refused to strike either of said names, and the prosecuting attorney of Wayne county struck off one of the names, and the clerk of said county under order of court struck off one of said names, and the name of Will M. Sparks was left unchallenged; whereupon Judge Hoelscher appointed Will M. Sparks special judge in said criminal cause to hear and finally determine the same. That on June 5, 1928, the said Will M. Sparks appeared in the Wayne circuit court and defendant duly objected to him qualifying and assuming jurisdiction of said cause, but said objections were overruled on June 12, 1928, and the said Will M. Sparks qualified and assumed jurisdiction of said cause, and on July 3 heard argument on said motion for a new trial, and overruled said motion, but has not yet signed any order book entry overruling said motion, but is threatening so to do, and will unless restrained from so doing.

The petition herein further alleges that said order was made by Judge Hoelscher without any authority so to do, and that Judge Himelick was at all times able, ready, and willing to hear and determine said motion for a new trial, and then sets out the reasons why Judge Himelick did not appear on the date set, which reasons are, in substance, as follows: That at the time defendant filed his motion for a new trial he announced to the attorneys that he would not hear said motion for a new trial till after the election which was on November 6, 1928, as he was a candidate himself, but would hear the same at any time thereafter that was convenient to the attorneys, if oral argument was desired. That thereafter Judge Himelick understood that the prosecuting attorney was in ill health, and also one of the attorneys for the defendant was confined to his bed on account of sickness. Also that Mr. Harlan, one of the attorneys for defendant, was attending the Legislature as a member thereof. That he heard nothing from any interested party about said motion till April, 1929, when he received a letter from the prosecuting attorney of Wayne county, requesting him to come to Richmond and hear said motion for a new trial. That he answered said letter by return mail, and stated that he could come any time it was agreeable to the attorneys interested, and requested said prosecutor to call the defendant's attorneys and agree upon a date and advise him. That the first information he had that the motion for a new trial had actually been filed was the letter he received from the prosecuting attorney above mentioned.

The response filed by Will M. Sparks alleges facts subsequent to his appointment as special judge in said criminal action. It is shown by said response that the order book entry showed the filing of a motion for a new trial at the proper time, but the court's minutes did not show the filing of any such motion, nor was there such a motion on file among the papers in the clerk's office of said court, nor did the clerk or any of her deputies remember of having filed the same.

That the defendant's attorneys stated to the court that such a motion had been prepared, and that an office copy of the same was in their office. The court thereupon permitted and ordered the defendant to submit a substituted copy of said original motion and to file the same as of the date when the order book entry showed it was filed, which was done.

Gustave H. Hoelscher, co-respondent herein, filed his response, and sets out therein substantially the same facts that are alleged in the petition. Said Hoelscher states that on October 22, 1928, after judgment had been entered, the attorneys for the defendant signified to the court their intention of filing a motion for a new trial, and agreed with Special Judge Himelick that said motion would be filed within a few days, also stating that they had prepared a motion for a new trial, but that they wanted to change same before filing. That said Himelick stated to the attorneys interested in said case that he would appear in said court on November 8, 1928, to hear said motion. That said Himelick did not appear on said day and no information was received as to why he did not appear. The other allegations are substantially the same as those of the petition. The affidavits of the prosecutor and deputy prosecutor of Wayne county were filed in support of the response herein filed.

The relator contends that Special Judge E. Ralph Himelick, when he was duly selected as special judge to hear and determine the cause of State of Indiana v. Frank Burk, No. 10645 of the Wayne circuit court, qualified and assumed jurisdiction, and complete and exclusive jurisdiction to finally hear and determine said cause. Respondent takes the position that, by reason of the delay of Special Judge Himelick in disposing of said criminal action, and the failure of said Himelick to appear in the Wayne circuit court on November 8, 1928, to hear argument on defendant's motion for a new trial, without informing the interested parties as to why he did not appear, was an abandonment of said cause, and a refusal to finally dispose of the action, and that public policy demanded and justified the action of the regular judge in appointing another special judge.

The respondents cite in support of their position Stinson v. State ex rel. Hargrave (1869) 32 Ind. 124;Glenn v. State ex rel. Clore (1874) 46 Ind. 368; and Greenup et al. v. Crooks et al. (1875) 50 Ind. 410. These are civil cases and were decided under the statute in force at that time. Sections 207, 208, c. 1, part Second, Statutes of Indiana, vol. 2, Rev. of 1876, Davis. The provisions of this statute are so different from the statute governing changes of venue in criminal causes that cases decided under the above statute are of little, if any, assistance in deciding...