State ex rel. Demers v. Miami Circuit Court of Miami County, 1167

• Decision Date: 19 February 1968
• Docket Number: No. 1167,1167
• Citation: 233 N.E.2d 777,249 Ind. 616
• Parties: STATE of Indiana ex rel. Eleanor DEMERS, Relator, v. The MIAMI CIRCUIT COURT OF MIAMI COUNTY, Indiana and Edward J. Meyers, Jr., as Special Judge of Miami Circuit Court, Respondent. S 125.
• Court: Indiana Supreme Court

Page 777

233 N.E.2d 777

249 Ind. 616

STATE of Indiana ex rel. Eleanor DEMERS, Relator, v. The MIAMI CIRCUIT COURT OF MIAMI COUNTY, Indiana and Edward

J. Meyers, Jr., as Special Judge of Miami Circuit

Court, Respondent.

No. 1167 S 125.

Supreme Court of Indiana.

Feb. 19, 1968.

R. M. Rhodes, Peru, for relator.

John J. Dillon, Atty. Gen., of Indiana, Rex Phillip Killian, Deputy Atty. Gen. of Indiana, for respondent.

PER CURIAM.

The relator filed a petition for a writ of mandate requesting that the Miami Circuit Court, Miami County, Indiana, and the Judge thereof discharge the relator for delay in her trial under Rule 1--4D of the Rules of the Supreme Court of Indiana in the case of State of Indiana v. Eleanor Demers, No. CR--16--67.

The chronological order of events prior to the filing of the petition are as follows:

March 26, 1967--Relator was arrested and held in the Miami County jail on open charge and without bond.

March 29, 1967--Miami Circuit Court appointed Richard Rhodes to represent relator as pauper attorney.

April 5, 1967--Relator was indicted by the Miami County grand jury for second degree murder.

May 11, 1967--Relator was arraigned at which time she pleaded not guilty. The Circuit Court Judge informed both counsel that the trial calendar and the jury calendar in this court as of that moment was solidly set until the week after Thanksgiving. Relator's attorney requested the court to set aside a civil case set for trial on June 19, 1967 and replace it with the case at bar. This was accordingly done by the Judge.

May 26, 1967--Relator filed answer of temporary insanity together with a petition for advancement of funds to enable relator to take interrogatories and depositions of out-of-state witnesses, and a petition for advancement of funds for the purpose of employing a psychiatrist to examine relator to determine her present sanity.

June 5, 1967--State of Indiana filed a reply to relator's answer, and an answer to relator's petitions.

In answer to relator's petition for funds to employ a psychiatrist, the state pointed out that when the court has reasonable grounds for believing relator to be insane, it shall order a sanity hearing and appoint two disinterested physicians to examine her pursuant to Burns' Ind.Stat.Ann. (1967 Cum.Supp.) § 9--1706a.

June 5, 1967--State of Indiana filed a petition for continuance based on reasons emanating from relator's petitions.

June 5, 1967--State's petition for continuance was granted by Judge Dice for the reason that the defendant's petitions and the State of Indiana's reply and answers thereto have raised issues which prohibit trial of this case as set.

June 29, 1967--Judge Dice disqualified himself.

July 12, 1967--Hon. Edward J. Meyers, Jr., special judge, qualified.

July 19, 1967--The attorney for relator advised the court that he was going to file a petition for discharge on August 31, 1967. The court advised the attorney that the court would hear the petition in the month of July, but the attorney advised the court that he was going on a fishing trip and preferred not to have the petition heard in July or August.

August 31, 1967--Relator filed petition for discharge.

Argument is heard on relator's petition for appointment of a psychiatrist and her petition for an advancement of funds to take depositions.

September 15, 1967--Court denies relator's petition for discharge, sustains relator's petition for appointment of a psychiatrist and denies her petition for funds with which to take depositions.

Court appoints three physicians to take examination.

September 15, 1967--Court sets trial for October 30, 1967.

September 26, 1967--One of physicians declines appointment and court appoints another.

September 28, 1967--One of physicians declines appointment and court elects not to appoint another.

October 13, 1967--Relator files motion to set aside court order denying defendant's petition for discharge, and files a second petition for discharge with memorandum and a motion to introduce evidence in support of the petition for discharge.

October 14, 1967--Court sets aside original order denying the first petition for discharge, hears evidence on the second petition. Court overrules both petitions for discharge. Trial is set for October 30, 1967.

November 13, 1967--Petition for a writ of mandate was filed. The application for a temporary writ of prohibition was denied.

It is the relator's contention that she was denied her right for a 'speedy' trial pursuant to Indiana Supreme Court Rule 1--4D, and Article 1, § 12 of the Constitution of Indiana, which provides that:

'All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.'

This constitutional guarantee is implemented by Supreme Court Rule 1--4D which provides in pertinent part that:

'1. Defendant in Jail--No defendant shall be detained in jail on a charge, without a trial, for a continuous period embracing more than six (6) months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge (which ever is later); except where a continuance was held on his motion, or the delay was caused by his act, * * *

'2. Defendant in Jail.--Motion for Early Trial--If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if...