State ex rel. French v. Hendricks Superior Court, Hendricks County

• Decision Date: 21 May 1969
• Docket Number: No. 369S44,369S44
• Citation: 252 Ind. 213,247 N.E.2d 519
• Parties: The STATE of Indiana on relation of Richard Allen FRENCH, Relator, v. The HENDRICKS SUPERIOR COURT, HENDRICKS COUNTY, Indiana; Vincin Helton, as Duly Elected Judge of the Hendricks Superior Court, Hendricks County, Indiana, Respondents.
• Court: Indiana Supreme Court

Page 519

247 N.E.2d 519

252 Ind. 213

The STATE of Indiana on relation of Richard Allen FRENCH, Relator, v. The HENDRICKS SUPERIOR COURT, HENDRICKS COUNTY, Indiana Vincin Helton, as Duly Elected Judge of the Hendricks Superior Court, Hendricks County, Indiana, Respondents.

No. 369S44.

Supreme Court of Indiana.

May 21, 1969.

Thomas J. O'Brien of Ryan, Lind & Deckard, Danville, Ind., for relator.

M. Dale Palmer of Palmer & Hinkle, Danville, Ind., for respondent.

JACKSON, Judge.

This matter comes to us by way of a Verified Petition For a Temporary Writ of Prohibition wherein relator prays that respondents be prohibited and restrained from proceeding any further in a certain cause entitled The State of Indiana vs. Richard Allen French. Such cause is numbered SCR 69-3 on the dockets of respondent court and is an affidavit charging relator with the crime of auto theft.

It appears that on January 12, 1969, relator was arrested without warrant for stealing an automobile. The arrest was made by Indiana State Trooper and Marion County Deputy Sheriffs who responded to a radio dispatch that a subject had stolen an automobile and had abandoned it in the vicinity of High School Road and U.S. Highway 40.

The verified petition alleges that said affidavit was filed in respondent court on January 13, 1969, that relator was on the 13th day of January, 1969, arrested on a warrant issued out of respondent court as a result of the filing of the affidavit above mentioned. Relator alleges that no judicial inquiry was made, hearing had to determine the existence of probable cause prior to the issuance of the warrant for relator's arrest on January 13, 1969. Relator further alleges that on the 13th day of January, 1969, respondent court, on learning relator was seventeen years of age, waived jurisdiction of relator to the Juvenile Court of Hendricks County, Indiana; that thereafter on the 21st day of January, 1969, the Hendricks Circuit Court sitting as the Juvenile Court of Hendricks County, Indiana, held a waiver hearing relative to the relator and the crime with which he was charged by the affidavit above referred to, at the conclusion of which the Juvenile Court of Hendricks County, Indiana, transferred jurisdiction of relator and the charge on which he was arrested back to the Superior Court of Hendricks County, Indiana, where relator was to be required to stand trial as an adult. On the 22nd day of January, 1969, respondent court reassumed jurisdiction in cause No. SCR 69-3 in said court. Being advised relator did not have counsel, the court appointed Thomas J. O'Brien as pauper attorney for relator and set bond for relator at the sum of $3,000.00.

Thereafter on February 10, 1969, relator filed a Motion to Quash the arrest warrant, supported by memorandum, on the grounds that there was no determination made of existence of probable cause before the warrant was issued. Further, by reason of the failure to determine probable cause prior to the issuance of the arrest warrant, it was contended that the issuance thereof was void, outside the scope of law and that the Sheriff of Hendricks County, Indiana, had no legal authority to arrest relator on the authority of such warrant.

On February 13, 1969, more than thirty days after the arrest warrant heretofore mentioned had been issued and more than thirty days after relator had been arrested by virtue thereof, the State of Indiana, by and through the Prosecuting Attorney for the 55th Judicial Circuit, caused to be filed in the office of the Clerk of the Superior Court of Hendricks County, Indiana, an affidavit entitled 'Probable Cause Affidavit.'

February 19, 1969, relator filed a Motion to Quash the affidavit entitled 'Probable Cause Affidavit,' supported by memorandum, on the grounds that the affidavit was in itself a tacit admission that the arrest warrant issued January 13, 1969, did not comply with the constitutional standards for the issuance of arrest warrants and was therefore in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Constitution of the State of Indiana.

February 20, 1969, respondent Judge heard oral argument on relator's Motion to Quash arrest warrant and on relator's Motion to Quash 'Probable Cause Affidavit,' and overruled both motions.

Relator urges inter alia that the Prosecuting Attorney for said Judicial District stated 'That there is no legal way to refile this case against Richard Allen French;' that in view of his incarceration in the Hendricks County Jail the statement of the Prosecuting Attorney, the fact that he is a pauper unable to raise even $10.00 for bail, denial of his constitutional rights, the illegal assumption of jurisdiction of this cause by respondent court will do relator irreparable harm and prays that there issue from this Court a Temporary Writ of Prohibition against respondents and each of them prohibiting and restraining each and both of them from proceeding any further in said cause and/or assuming, taking or exercising any authority or jurisdiction in or over said cause, etc.

The Court heard oral argument on the issues presented herein on the 10th day of March 1969, and took the matter under advisement in order to give the full Court opportunity to fully and carefully consider all questions presented hereby.

In order to clearly present the issues we deem it advisable to incorporate herein in pertinent part, the exact wording of some of the pleadings, beginning with the affidavit filed herein.

The affidavit was attached to and made a part of relator's petition, marked Exhibit A and reads as follows, to-wit:

'THE STATE OF INDIANA

vs.

RICHARD ALLEN FRENCH

Affidavit for THEFT

(IN JAIL)

BE IT REMEMBERED, that on this day, before me, M. DALE PALMER Prosecuting Attorney 55th Judicial Circuit, Walter D. Ferrell personally came who, being duly sworn upon his oath, says that, as he is informed and believes, Richard Allen French on the 12th day of January, A.D., 1969, at and in the county of Hendricks and State of Indiana, then and there committed the crime of theft in that he knowingly, unlawfully and feloniously obtained and exerted unauthorized control over property of Walter D. Ferrell, to-wit: 1955 Mercury automobile of the value of $110.00, intending to deprive the said Walter D. Ferrell permanently of the use and benefit of said property, the same being contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana.

/s/ Walter D. Ferrell

Subscribed and sworn to before me, this 13 day of January, A.D., 1969.

/s/ M. Dale Palmer

Prosecuting Attorney

55th Judicial Circuit.

Approved by me:

/s/ M. Dale Palmer

Prosecuting Attorney'

Exhibit B is the warrant issued in response to the filing of Exhibit A, and the Sheriff's return thereon, and in pertinent part reads as follows, to-wit:

'STATE OF INDIANA, HENDRICKS COUNTY, SS:

THE STATE OF INDIANA, TO THE SHERIFF OF HENDRICKS COUNTY OF ANY OTHER PEACE OFFICER OF THE STATE OF INDIANA, GREETING

You are hereby commanded to arrest RICHARD ALLEN FRENCH if HE may be found in your bailiwick, so that you have HIS body before the Judge of the Hendricks Superior Court, instanter, then and there to answer the State of Indiana on a charge of THEFT and abide the order of the court thereon and return this writ.

WITNESS, the Clerk and seal of said court, this 13th day of January, 1969.

/s/ John Gambold, Jr., Clerk.'

'Came to hand this 13 day of Jan., 1969. Was served as commanded by reading to and in the presence and hearing of the within named, Richard Allen French, and by taking her (sic) into my custody.

Was served as commanded by leaving a true and correct copy at the usual place of residence of the within named _ _.

Done this 13 day of Jan., 1969.

Merle Funk

Sheriff Hendricks County' Exhibit C is a copy of the court's minutes relative to this cause and in pertinent part reads as follows:

'MINUTES OF THE COURT

1-13-69

Approved affidavit filed (H.I.), Warrant ordered issued to Shf. of Hend. Co., or any other peace officer of the State of Ind., Bond set at $3,000.00. Warrant issued accordingly.

1-13-69

Comes now the State of Indiana by M. Dale Palmer, Prosecuting Attorney; comes also the defendant, Richard Allen French, in person and without an attorney for arraignment. Defendant, Richard Allen French states in open Court that he is 17 years of age on this date. The Court being duly advised now transfers this matter to the Juvenile Court with reference to said defendant and the bond is to remain in the amount of $3,000.00.

1-22-69

Court having received the Clerk's certificate that the Hendricks County Juvenile Court in Cause No. J-69-4 has waived juvenile jurisdiction and transferred said cause back to Hendricks County Superior Court, the Court now reassumes jurisdiction of the defendant, Richard Allen French.

1-22-69

Court having reassumed jurisdiction, comes now the State of Indiana by M. Dale Palmer, Prosecuting Attorney, comes also the defendant, Richard Allen French for arraignment. Defendant advises the Court that he does not have an attorney. Court being duly advised, now appoints Thomas O'Brien as pauper attorney for defendant. Defendant is remanded to the custody of the Sheriff of Hendricks County until good and sufficient bond in the amount of $3000.00 each has been furnished and approved.

2-10-69

Comes now defendant and files Motion to Quash Arrest Warrant (H.I.) and Memorandum in Support of Motion to Quash Arrest Warrant (H.I.). Court sets this matter for hearing at 11:00 o'clock A.M. on the 20th day of February, 1969. (Clerk to notify all attorneys of record)

2-14-69

Comes now H. Dale Palmer, Prosecuting Attorney of the 55th Judicial Circuit and files Probable Cause Affidavit (H.I.). The Court being duly advised sets this matter for hearing at 11:00 o'clock A.M. on the 20th day of February, 1969. (Clerk to notify all attorneys)

2-20-69

Comes the State of...