State ex rel. Fox v. La Porte Circuit Court, 3583

• Citation: 138 N.E.2d 875,236 Ind. 69
• Decision Date: 17 December 1956
• Docket Number: No. 29396,No. 3583,L,3583,29396
• Parties: STATE of Indiana on the relation of Raymond M. FOX, Jr., Prosecuting Attorney for the 32nd Judicial Circuit of the State of Indiana, Relator, v. The LA PORTE CIRCUIT COURT, Jacob A. Fleishbein, Special Judge in State of Indiana v. Robert Lee Johnson, CauseaPorte Circuit Court, Respondents.
• Court: Supreme Court of Indiana

Page 875

138 N.E.2d 875

236 Ind. 69

STATE of Indiana on the relation of Raymond M. FOX, Jr.,

Prosecuting Attorney for the 32nd Judicial Circuit

of the State of Indiana, Relator, v. The LA PORTE CIRCUIT COURT, Jacob A. Fleishbein, Special

Judge in State of Indiana v. Robert Lee Johnson,

Cause No. 3583, LaPorte Circuit Court,

Respondents.

No. 29396.

Supreme Court of Indiana.

Dec. 17, 1956.

Patrick Brennan, Pros. Atty., Isadore D. Rosenfeld, Deputy Pros. Atty., So. Bend, for appellant.

Alfred J. Link, LaPorte, Floyd O. Jellison, So. Bend, for appellee.

BOBBITT, Judge.

On February 9, 1953, one Robert Lee Johnson was indicted for murder in the first degree by the Grand Jury of St. Joseph County. On May 14, 1953, a motion for a change of venue from the county (St. Joseph) 'on account of local prejudice,' was filed and granted, and the venue subsequently changed to LaPorte County. The cause was there tried and a verdict of guilty was returned on December 31, 1953. A motion for a new trial was subsequently filed and, on July 2, 1954, a new trial was granted.

On May 4, 1955, defendant, Johnson, filed an affidavit for a change of venue from LaPorte County on account of bias and local prejudice, to which the State filed objections. On May 23, 1955, this motion was denied. On June 1, 1955, the defendant filed an affidavit for a change of venue from the judge and respondent, Fleishbein, was subsequently selected and qualified.

On October 4, 1955 the defendant again filed an affidavit for a change of venue from LaPorte County for the same reasons stated in the affidavit which was denied by the regular judge. The State also filed objections to this affidavit on the ground, among others, that since the defendant had already had a change of venue from St. Joseph County he could not, under the provisions of Acts 1905, ch. 169, § 207, p. 584, being § 9-1305, Burns' 1956 Replacement, obtain another from LaPorte County.

Thereafter, on December 28, 1955, the following order was entered by the special judge:

'Presentation of affidavits and argument of all counsel is now heard and concluded, and defendant's petition for transfer and change of venue to another county is now granted by the court, to which ruling of the court the State of Indiana now objects and excepts.'

On March 1, 1956, the State filed a petition for writ of mandate in this court, asking that respondents be mandated 'to expunge the records of said court of the entry granting a change of venue' from La Porte County. We issued an alternative writ.

The question here presented is: Did respondents have the power and authority, under the factual situation in this case, to grant a change of venue from LaPorte County?

First: Could the trial court under its common law power grant a change of venue from LaPorte County? Acts 1927, ch. 132, § 10, p. 411, being § 9-1301, Burns' 1956 Repl., and § 9-1305, supra, provide respectively:

'The defendant may show to the court, by affidavit, that he believes he can not receive a fair trial, owing to the bias and prejudice of the judge against him, or the excitement or prejudice against the defendant in the county or in some part thereof, and demand to be tried by disinterested triers. Any affidavit for change of judge shall be filed at least ten days before the day set for trial or if a date less than ten days ahead is set for trial then such affidavit shall be filed within two days after the setting of the case for trial.'

'When affidavits for a change of venue are founded upon excitement or prejudice in the county against the defendant, the court, in all cases not punishable by death, may, in its discretion, and in all cases punishable by death, shall grant a change of venue to the most convenient county. The clerk must thereupon immediately make a transcript of the proceedings and orders of court, and, having sealed up the same with the original papers, shall deliver them to the sheriff, who must, without delay, deposit them in the clerk's office of the proper county, and make his return accordingly: Provided, however, That only one change of venue from the judge and only one change from the county shall be granted.'

Insofar as the above statutes are inconsistent with the common law rule pertaining to a change of venue, the common law is superseded to the extent of such inconsistency, and is no longer any part of the law of this State. McCoy v. Payne, 1879, 68 Ind. 327, 336.

The common law rule as to change of venue must yield in this case to a valid statute, Acts 1905, ch. 169, §§ 203-217, as amended, which supersedes such rule. Cloud v. Bruce, 1878, 61 Ind. 171, 174; Sopher v. State, 1907, 169 Ind. 177, 182, 81 N.E. 913, 14 L.R.A.,N.S., 172, 14 Ann.Cas. 27; Atkinson v. Disher, 1912, 177 Ind. 665, 673, 98 N.E. 807; Southern R. Co. v. Howerton, 1914, 182 Ind. 208, 220, 105 N.E. 1025, 106 N.E. 369; Connell v. State ex rel. Thompson, 1925, 196 Ind. 421, 430, 431, 144 N.E. 882, 148 N.E. 407.

The sections of the statute above quoted provide a mode of procedure for a change of venue in criminal proceedings in this State, and it must be followed and obeyed by the courts. Sanders v. State, 1882, 85 Ind. 318, 322, 44 Am.Rep. 29; Nealis v. Dicks, 1880, 72 Ind. 374, 377.

The decisions of this court, from its inception, sustain the view that a right to a change of venue and the extent and manner of exercising such right, both in criminal and civil procedure, are regulated and controlled by statutory authority. In a civil case, State ex rel. Young v. Niblack, 1951, 229 Ind. 509, 513, 99 N.E.2d 252, 253, this court said:

'Statutes providing for and governing changes of venue are designed as procedural safeguards of a fair trial. 'The rights of the parties and powers of the courts in regard to changes of venue are regulated by statute. While a common-law right to a change of venue upon certain grounds has been recognized in some jurisdictions where no complete statute upon the subject exists, Crocker v. Justices, 1911, 208 Mass. 162, 94 N.E. 369, 21 Ann.Cas. 1061, the general rule is that a change of venue can be asserted and be exercised only in the manner provided by the statute and in accordance with the provisions thereof.' State ex rel. [Neal] v. Superior Court of Marion County, 1931, 202 Ind. 456, 174 N.E. 732, 734.'

Also, in Michigan Mutual Life Insurance Co. v. Naugle, 1891, 130 Ind. 79, 80-81, 29 N.E. 393, 394, it is said:

'It is apparent that the legislature in the enactment of the statute governing changes of venue sought to accomplish a double purpose. It was designed primarily to enable litigants to remove their causes for trial from an atmosphere of prejudice and unfairness to a locality where they might find fair and unbiased triers, with surroundings not tainted by an undeserved odium affecting them or their cause. At the same time they wished so far as possible to limit the mischief that might be done by those whose only wish was delay and the hindrance of justice. Therefore, while providing for changes of venue, they allow but one change, and invest the court with the discretion of designating the county to which it shall go, and the time within which the change shall be perfected, by the payment of the cost. When the one change allowed is granted, whether it is perfected or not, the party who asked it can have no other change. The making of the order ends his right. He has then had the one change of venue allowed him, whether he avails himself of it or not. When a party applies to a court for a change of venue, it must be presumed that the application is made in good faith, not for delay, but because the party asking it really believes he can have a fairer trial elsewhere.'

To the same effect see also: Duggins v. State, 1879, 66 Ind. 350, 352.

The rule as stated above applies with equal force to applications for change of venue in civil and criminal proceedings, unless there is some constitutional provision to the contrary. 22 C.J.S., Criminal Law, § 187, p. 300.

As demonstrating further, the view of this court that the right to a change of venue in Indiana is statutory, see: Millison v. Holmes, 1848, 1 Ind. 45, 46; State ex rel. Mabbitt v. Smith, 1876, 55 Ind. 385, 386; Weakley v. Wolf, 1897, 148 Ind. 208, 219-221, 47 N.E. 466; Daniels v. Bruce, 1911, 176 Ind. 151, 156, 95 N.E. 569; State ex rel. Neal v. Superior Court of Marion County, 1931, 202 Ind. 456, 461-462, 174 N.E. 732; Stair v. Meissel, 1934, 207 Ind. 280, 290-292, 192 N.E. 453.

The court in Crocker v. Justices of Superior Court, 1911, 208 Mass. 162, 94 N.E. 369, 21 Ann.Cas. 1061, relied upon by respondents, recognizes the right of the Legislature to appropriate the entire field of change of venue when, at page 376 of 94 N.E., it said:

'There are authorities collected in a footnote which seems to have a contrary appearance. It is not necessary to examine them one by one. Most of them are to be distinguished as arising under constitutions which have some controlling provision, or under statutes or Codes which cover the whole subject-matter of change of place of trial in great detail and leave nothing to be governed by the common law.' (Our italics.)

In Stamp v. Commonwealth, 1923, 200 Ky. 133, 253 S.W. 242, at page 245, the Court of Appeals of Kentucky in a case where the trial court had denied a second change of venue after the first trial had resulted in a hung jury, said:

'The right to change of venue in a criminal case is one provided by statute and the Legislature has authority to provide the extent and manner of its exercise. It might take it away altogether, or it could change the method of invoking it.'

The general rule applicable here is concisely stated in 22 C.J.S., Criminal Law, § 187, p. 300, as follows:

'Subject to constitutional restrictions, the right to a change of venue in criminal cases and the extent and manner of exercising such right are matters of statutory regulations; the legislature may take away the right...