State ex rel. Flaherty v. Ermston
| Decision Date | 01 November 1935 |
| Docket Number | 26635,26636 |
| Parties | STATE ex rel. FLAHERTY v. ERMSTON. STATE ex rel. NYE v. SAME |
| Court | Indiana Supreme Court |
Original actions by the State, on the relation of one Flaherty and one Nye, respectively, against James B. Ermston etc., for writs of prohibition.
Alternative writs dissolved and petitions denied.
Owens & Whetsel, of Indianapolis, for relator Flaherty.
Karrer & Peden, of Indianapolis, for relator Nye.
Oscar C. Hagemier and David Lewis, both of Indianapolis, for respondent.
Each of the above-named relators filed a petition in this court for an alternative writ of prohibition alleging in substance that he, the other relator, and one Tait were jointly indicted by the Marion county grand jury for the offenses of robbery, burglary, and larceny; that the defendant Tait filed his motion supported by affidavit for a change of venue from the judge of the criminal court of Marion county, which motion was granted by the court, and the names of three attorneys were submitted; that the prosecuting attorney and attorney for Tait each struck one name, leaving the name of respondent; that the relators refused to join in the motion for change of judge or in the striking, but that the respondent qualified as special judge and assumed jurisdiction of said cause, including the cause against these relators, all of which was done over their objection. It also appears that pleas in abatement to the jurisdiction of respondent were filed by relators, and that relator Nye filed a motion for change of venue from the respondent as special judge on account of the bias and prejudice of such special judge, which pleas and motion were overruled.'
Upon the showing made, this court issued its temporary writ in each case, prohibiting and restraining the respondent from assuming any jurisdiction over relators and directing the respondent to show cause, if any there be, why such temporary writ should not be made permanent.
By his response respondent defends his action in assuming and exercising jurisdiction of the cause against relators and in overruling their pleas in abatement to his jurisdiction on the ground that, unless separate trials are ordered by the court, in accordance with the provisions of chapter 92, Acts 1935, p. 286, two or more defendants jointly charged with an offense shall be tried jointly, and the procuring of a change of judge by one of such codefendants has the effect of transferring jurisdiction of the cause, including jurisdiction to try all the defendants, to the special judge so selected.
Relators, on the other hand, contend that the effect of granting a change of judge to one of two or more defendants jointly indicted, upon the sole application of that one, is to sever the defenses, leaving the defendant (or defendants) who does not apply for a change of judge to be tried before the regular judge. They cite the case of Shular v. State (1886) 105 Ind. 289, 4 N.E. 870, 871, 55 Am. Rep. 211, [1] in support of their contention.
The question presented to this court in Shular v. State, supra, was whether a defendant, jointly indicted with another, had a right to be in court at the time his codefendant's application for a change of judge was made or ruled upon. At the time of the decision in the Shular Case a joint defendant enjoyed a statutory right to a change of judge and to a separate trial. In the opinion it was assumed that a joint defendant's individual or separate application for a change of judge was equivalent to a request to sever his defense, and the opinion stated that the effect of a severance, brought about by a change, left 'the defendant who does not apply for a change to be tried in the court where the indictment was found,' and carried 'the trial of the other defendant to the court to which the cause was ordered upon his application.' Since a joint defendant was entitled, as a matter of right, to a change of judge and a separate trial, this court properly treated the separate application of a joint defendant as equivalent to an application for severance of defense, and correctly decided that the appellant's interests were not involved in his codefendant's separate application for change of judge. But under the statute then in force a joint application for change of judge could not have been treated as an application for severance. And obviously an application for severance could not have been treated as an application for a change of judge. Consequently the assumption in the Shular Case that an application by a joint defendant for change of judge amounts to an application for severance must be limited to the case of a separate and individual application for change of judge by a joint defendant when he has a right to both change of judge and severance of defense.
The foregoing distinctions were recognized in Shockley v. State (1924) 194 Ind. 321, 142 N.E. 850. This case involved a separate application for change of judge by a joint defendant in a criminal prosecution for a misdemeanor. The statute then in effect (section 9-1804, Burns' Ind. St. Ann. 1933, Acts 1905, c. 169, § 259, p. 584) provided that a defendant charged jointly with another could demand and was entitled to be tried separately, if the indictment or affidavit was for a felony; but no similar statutory provision had been made for defendants jointly charged with a misdemeanor. This court noted the cases of Shular v. State, supra, and Jones v. State (1899) 152 Ind. 318, 53 N.E. 222, cited by relators herein, and pointed out that the prosecutions in those cases were for felonies, and that under the statute 'each defendant was entitled to a separate trial'; but the court also pointed out that, in the case under consideration, a prosecution for a misdemeanor, the granting of a separate trial was discretionary with the court, and declared that an application for a change of venue from the judge 'did not have the effect of severing the trial of two defendants.'
The effect of chapter 92, Acts 1935, is to require defendants who are 'jointly charged with any offense, whether a felony or a misdemeanor,' to be tried jointly, 'unless the court, in its discretion * * * orders separate trials.' The rule is now the same for all criminal prosecutions of joint defendants as it was for misdemeanors when this court decided the Shockley Case. And, in harmony with the reasoning of that case, we hold that a change of judge, granted upon the separate and individual motion of a joint defendant, does not, in and of itself, effect a severance for trial. Consequently, when a change of judge is validly granted, the special judge acquires jurisdiction of the person of all defendants as well as of the subject-matter of the offense charged. This follows from the fact that a joint offense is only one offense committed by two or more persons jointly; and, in the absence of statutory authorization to the contrary, no court can be required to sever defenses. The act of 1935 authorizes a trial court 'in its discretion' to grant separate trials. If the court refuses...
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