State ex rel. Gannon v. Porter Circuit Court, No. 3583

Docket NºNo. 29778
Citation239 Ind. 637, 159 N.E.2d 713
Case DateJuly 03, 1959
CourtSupreme Court of Indiana

Page 713

159 N.E.2d 713
239 Ind. 637
STATE of Indiana on the Relation of Charles W. GANNON, as
Special Judge of the La Porte Circuit Court in
Cause No. 3583 thereof, entitled State
of Indiana v. Robert Lee
Johnson, Relator,
v.
PORTER CIRCUIT COURT: Goldie L. Burns, Judge of the Porter
Circuit Court, Respondents.
No. 29778.
Supreme Court of Indiana.
July 3, 1959.

[239 Ind. 638] Charles W. Gannon, Gary, pro se.

Carl M. Franceschini, La Porte, for respondents.

ACHOR, Chief Justice.

This is an action for writ of mandate. The essential facts are as follows:

One Robert Lee Johnson was charged with murder in the St. Joseph Circuit Court in 1953. He filed a motion for change of venue from that county and pursuant thereto the venue was changed to the La Porte Circuit Court. Thereafter on motion of the defendant, and over the objection of the state, the La Porte Circuit Court granted a second change of venue [239 Ind. 639] from the county. This court in the case of State ex rel. Fox v. La Porte Circuit Ct., 1956, 236 Ind. 69, 138 N.E.2d 875, mandated the respondents to expunge the record of such second change of venue for the reason that the court was without authority to grant such second change.

Thereafter the cause was submitted to a jury for trial in the La Porte Circuit Court, however because of 'reprehensible' publicity given the case, as reported in the case of LaGrange v. State, Ind. 1958, 153 N.E.2d 593, on request of both the defendant and the state submission was withdrawn from the jury.

Thereafter, the defendant filed a verified motion for change of venue from the county which stated among other things 'that because of the discussion of this defendant and his defense it would be impossible for this defendant to have this case heard by a jury in La Porte County.'

To this motion Raymond M. Fox, Jr., the prosecuting attorney of the 32nd Judicial

Page 714

Circuit (La Porte County) and Patrick Brennan, the prosecuting attorney of the 60th Judicial Circuit (St. Joseph County), filed an answer to said motion admitting all its material allegations. The State of Indiana in said answer further expressly consented to the requested transfer and affirmatively stated 'that it would be impossible to obtain a fair and impartial trial of the issues involved in this action in La Porte County, Indiana because of the great publicity attendant to this cause as alleged in defendant's verified application.'

Thereupon, relator herein, as special judge in said cause entered an order changing the venue of said cause from the La Porte Circuit Court to the Porter Circuit Court, and thereupon said cause was transferred to the Porter [239 Ind. 640] Circuit Court.

Thereafter, this respondent, as judge of the Porter Circuit Court, upon his own motion entered a finding that the order of the La Porte Circuit Court granting a change of venue from La Porte Circuit Court to Porter Circuit Court in said cause was void and conferred no jurisdiction of the subject matter of said action or the person of said defendant upon Porter Circuit Court. The respondent thereupon entered an order remanding said cause from Porter Circuit to La Porte Circuit Court.

In support of his action respondent relies upon the case of State ex rel. Fox v. La Porte Circuit Court, supra. We therefore examine the law and the facts in that case to ascertain its decisive effect upon the facts in the case at bar. We find that the facts with which we are presently concerned differ in two essentials from those present in the former instance.

First: There is a difference in the substantive facts stated in the affidavits for change of venue. In the former case the affidavit merely alleged the statutory grounds in general terms that the defendant could not have a fair trial 'on account of excitement and local prejudice' of the citizens of the county. Here, however, the affidavit asserted that on the basis of specifically stated facts 'it would be impossible for the defendant to have this case heard by a jury in La Porte County and have the case decided solely upon the evidence presented in court.' (Our italics.) The statement is tantamount to an allegation that it would be impossible to obtain an impartial jury to try the case in La Porte County.

This distinction is significant for the reason that here we are concerned with a second change of venue [239 Ind. 641] not authorized by statute 1 nor is it authorized by the Constitution 2 except in so far as it guarantees to the accused 'a public trial, by an impartial jury, in the county in which the offense shall have been committed.' (Our italics.)

The decree granting the change in the former instance was unauthorized since it did not rest upon any statutory authority, since the statute which authorized a change on account of 'excitement and local prejudice' expressly limited the right to such change to...

To continue reading

Request your trial
13 practice notes
  • Smith v. State, No. 182S19
    • United States
    • Indiana Supreme Court of Indiana
    • July 24, 1984
    ...error. Lacy v. State, (1982) Ind., 438 N.E.2d 968. Furthermore, as this Court held in State ex rel. Gannon v. Porter Circuit Court, (1959) 239 Ind. 637, 159 N.E.2d 713, the Constitution of Indiana, Art. I, Sec. 13, guarantees an impartial jury and the trial court has authority to consider a......
  • Luong v. State (Ex parte State), 1121097.
    • United States
    • Supreme Court of Alabama
    • March 14, 2014
    ...a second change of venue and thus contravene [the statute],’ ” 366 U.S. at 721 (quoting State ex rel. Gannon v. Porter Circuit Court, 239 Ind. 637, 642, 159 N.E.2d 713, 715 (1959) ), the United States Supreme Court agreed with the defendant that the media coverage in Gibson County was exten......
  • Irvin v. Dowd, No. 41
    • United States
    • United States Supreme Court
    • June 5, 1961
    ...The Page 721 Court of Appeals upheld its validity. However, in the light of State ex rel. Gannon v. Porter Circuit Court, 239 Ind. 637, 159 N.E.2d 713, we do not believe that argument poses a serious problem. There the Indiana Supreme Court held that if it was 'made to appear after attempt ......
  • State v. Belt, No. 9910
    • United States
    • Supreme Court of South Dakota
    • November 14, 1961
    ...develop during the examination of the jury, though in contravention of the statute (see State ex rel. Gannon v. Porter Circuit Court, 239 Ind. 637, 159 N.E.2d 713) as no abuse of discretion is Defendant exhausted all his peremptory challenges and so may complain of denial of challenges for ......
  • Request a trial to view additional results
13 cases
  • Smith v. State, No. 182S19
    • United States
    • Indiana Supreme Court of Indiana
    • July 24, 1984
    ...error. Lacy v. State, (1982) Ind., 438 N.E.2d 968. Furthermore, as this Court held in State ex rel. Gannon v. Porter Circuit Court, (1959) 239 Ind. 637, 159 N.E.2d 713, the Constitution of Indiana, Art. I, Sec. 13, guarantees an impartial jury and the trial court has authority to consider a......
  • Luong v. State (Ex parte State), 1121097.
    • United States
    • Supreme Court of Alabama
    • March 14, 2014
    ...a second change of venue and thus contravene [the statute],’ ” 366 U.S. at 721 (quoting State ex rel. Gannon v. Porter Circuit Court, 239 Ind. 637, 642, 159 N.E.2d 713, 715 (1959) ), the United States Supreme Court agreed with the defendant that the media coverage in Gibson County was exten......
  • Irvin v. Dowd, No. 41
    • United States
    • United States Supreme Court
    • June 5, 1961
    ...The Page 721 Court of Appeals upheld its validity. However, in the light of State ex rel. Gannon v. Porter Circuit Court, 239 Ind. 637, 159 N.E.2d 713, we do not believe that argument poses a serious problem. There the Indiana Supreme Court held that if it was 'made to appear after attempt ......
  • State v. Belt, No. 9910
    • United States
    • Supreme Court of South Dakota
    • November 14, 1961
    ...develop during the examination of the jury, though in contravention of the statute (see State ex rel. Gannon v. Porter Circuit Court, 239 Ind. 637, 159 N.E.2d 713) as no abuse of discretion is Defendant exhausted all his peremptory challenges and so may complain of denial of challenges for ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT