State ex rel. Hale v. Marion County Municipal Court, Room 3

• Decision Date: 14 July 1955
• Docket Number: No. 29260,29260
• Citation: 127 N.E.2d 897,234 Ind. 467
• Parties: STATE of Indiana on the Relation of Ernest HALE, Relator, v. The MARION COUNTY MUNICIPAL COURT, ROOM 3, and The Honorable Patrick J. Barton, Judge of the Marion County Municipal Court, Room 3, Respondents.
• Court: Indiana Supreme Court

Page 897

127 N.E.2d 897

234 Ind. 467

STATE of Indiana on the Relation of Ernest HALE, Relator, v. The MARION COUNTY MUNICIPAL COURT, ROOM 3, and The Honorable Patrick J. Barton, Judge of the Marion County Municipal Court, Room 3, Respondents.

No. 29260.

Supreme Court of Indiana.

July 14, 1955.

Henry J. Richardson, Jr., Nola A. Allen, Indianapolis, for appellant.

Richard J. Barton, Charles F. O'Connor, Indianapolis, for appellee.

ACHOR, Judge.

A temporary writ of mandate was issued by this court on application of relator, which directed the respondent to grant relator's application for change of judge in three separately filed criminal charges pending in that court and growing out of the same offense. The charge were public intoxication, reckless driving, and operating a motor vehicle while under the influence of intoxicating liquor, the latter being a second offense and therefore a felony. Acts 1939, ch. 48, § 52, p. 289, § 47-2001(b), Burns' 1952 Repl. The respondent sustained the motion and made the appropriate record for change of judge with respect to the first two charges which involved only misdemeanors, but made no such record with regard to the latter charge. Thereupon on application of relator, this court subsequently issued a temporary writ of prohibition restraining respondent from proceeding any further in the cause unless such action was in compliance with the writ of mandate previously issued. It is upon these issues that this action is prosecuted.

The fundamental question presented is this: Is relator entitled to a change of venue from respondent as to the criminal charge of operating a motor vehicle while under the influence of intoxicating liquor, it being a second offense and, therefore, a felony?

It is not disputed that the jurisdiction of the Marion County Municipal Court, Room 3, is limited to the trial and conviction of misdemeanors only and to preliminary hearings for the purpose of binding over to the criminal court persons charged with felonies, where probable cause is found to exist. Acts 1925, ch. 194, § 5, p. 457, § 4-2505, Burns' 1946 Repl.; Acts 1947, ch. 267, § 1, p. 1071, § 4-2402, Burns' 1946 Repl. (1953 Supp.); Acts 1921, ch. 161, § 2, p. 404; § 4-2403, Burns' 1946 Repl.; Acts 1939, ch. 137, § 1, p. 671, § 9-704, Burns' 1942 Repl.; Acts 1905, ch. 169, § 72, p. 584, § 9-711, Burns' 1942 Repl.; State v. Morgan, 1878, 62 Ind. 35; State v. Hattabough, 1879, 66 Ind. 223; Siebert v. State, 1884, 95 Ind. 471; Davis v. Bible, 1893, 134 Ind. 108, 33 N.E. 910.

The statute regarding changes of venue in criminal cases provides as follows:

'On prosecution by indictment of affidavit the state or a defendant may apply for a change of judge on the ground that a fair and impartial trial can not be had by reason of the interest, bias or prejudice of the trial judge.' (Our italics.) Acts 1937, ch. 290, § 1, p. 1338, § 9-1316, Burns' 1942 Repl.

The specific issue upon which a decision must rest is whether the procedure by which, under § 4-2402, supra, such a municipal court 'shall hold such prisoner to bail for his appearance before the proper court, or commit him to jail in default of such bail', constitutes a 'trial' within the meaning of the statute authorizing change of venue, § 9-1316, supra.

It is respondent's position that the change of venue statute is applicable only to proceedings before the 'trial judge' and that, because of the very limited statutory authority of the respondent with respect to the felony charge, the respondent was not a trial judge from whom a change of venue was authorized. On the other hand, it is relator's position that such proceedings constitute a 'trial' within the meaning of the statute, § 9-1316, supra, and also that refusal to grant the change of venue constituted a violation of the 'due process clause' of the Constitution of the United States.

In support of its position, relator cites the fact that on the civil side of the law, a 'trial' is defined by statute as 'a judicial examination of the issues, whether of law or of fact, in an action.' Acts 1881, Spec. Sess., ch. 38, § 371, p. 240, § 2-1901, Burns' 1946 Repl. (Our italics.) He contends (a) that the proceedings with which we are here concerned is an 'action' within the meaning of the statute and (b) that even though this is a criminal action, use of the word 'trial' by the legislature in the change of venue statute, § 9-1316, supra, applicable to criminal cases, indicates its intention that the same definition of the word be applied in both civil and criminal actions. Relator contends that the hearing conducted by the municipal court judge constitutes such a 'trial' for the reason that it is a 'judicial examination of the issues * * * in an action' first, for the purpose of determining the fact of the court's jurisdiction to finally adjudicate the cause and, if it is ascertained that he does not have such jurisdiction, then to dispose of the matter within his judicial authority by discharging the accused or recognizing him to appear and answer the charge that might be made in the criminal court. See Wischmeyer v. State, 1929, 200 Ind. 512, 514, 165 N.E. 57.

In support of his position, relator cites the case of State ex rel. Jones v. Geckler, J. 1938, 214 Ind. 574, 16 N.E.2d 875, and asserts that it presents 'a situation very similar to the one under review * * * (in which) the court mandated * * * change of venue.' However, the facts in that case are not analogous to those before us. Rather, they would seem by analogy to support respondent's position herein. That case involved a charge of juvenile delinquency based upon the specific offense of assault and battery. The court in that case held that the proceedings constituted an adversary proceedings charging an individual with a specific offense constituting a misdemeanor, which resulted in a final adjudication of the issue and subjected the minor, if found guilty of the offense charged, to certain statutory commitments within the discretion of the court.

Furthermore, an examination of the other reported cases which have construed the above statute, § 2-1901, supra, which states in definition that 'The trial is a judicial examination of the issues, * * * in an action', discloses that they have not adopted the broad general construction which respondent advocates. In those cases where this court has considered the nature of 'an action' the 'trial' of which is subject to change of venue, this court has stated the rule as follows:

'* * * It has been held by this court, also, that an action 'is any judicial proceeding which, conducted to a termination, will result in a judgment'; and that a civil action 'is an action wherein an issue is presented for trial, formed by the averments of the complaint and the denials of the answer, or the replication to new matter, and the trial takes place by the introduction of legal evidence in support of the allegations of the pleadings, and a judgment in such an action is conclusive upon the rights of the parties, and could be plaeaded in bar.' Evans v. Evans, 105 Ind. 204, 5 N.E. 24, 768, citing Deer Lodge County v. Kohrs, 2 Mont. 66, 70.' Berry v. Berry, 1897, 147 Ind. 176, 179-180, 46 N.E. 470, 471. (Our italics).

In none of the cases which have come to our attention has this court considered the proceedings 'an action,' nor has it held that the 'judicial examination of the issues' constituted a 'trial' unless such examination was the basis for the final adjudication of an issue. For example, in the case of Chicago, etc., R Co. v. Collins, 1924, 82 Ind.App. 41, 54, 142 N.E. 634, 143 N.E. 712, the court stated that '* * * A trial is an investigation under the direction and control of the state for the purpose of discovering the truth and establishing the facts upon which the sentence of The law may be pronounced. Section 542, Burns' 1914 [Acts 1881, p. 240]; Ellenberg v. Southern R. Co. [1908], 5 Ga.App. 389, 63 S.E. 240. See Schwindt v. Graeff [1924], 142 N.E. 736, 739.' (Our italics.)

Contrary to the position asserted by respondent, the proceedings authorized by § 9-711, supra, did not constitute 'an action' nor was the 'hearing' a trial which was the basis for a final adjudication of any issue. It was merely what it was described to be:--a 'preliminary hearing' for the purpose of ascertaining whether or not there is probable cause why the accused should 'be recognized to appear at the next term of the Criminal Court of such county.' On a charge of a felony, the Marion County Municipal Court, Room 3, could only recogniz or discharge the accused. The proceedings could under no circumstances result in either the acquittal or the conviction of the accused. They were not conclusive of the rights of the accused and could not be pleaded in bar.

As stated in the case of Siebert v. State, 1884, 95 Ind. 471, 480, supra, the court, 'under our law, has no jurisdiction to either acquit or convict a defendant charged with a felony, his (its) only authority in such a case being that of an examining court to hear and discharge, or commit and bind over, the defendant to appear before a court having jurisdiction to try the case.' Also, consistent with the fact that the disposition of a felony charge by a magistrate court does not constitute an adjudication of the issue of the charge, our courts have held that the discharge of the defendant by a magistrate is not a bar to a subsequent prosecution. Siebert v. State, supra. See also, State v. Hattabough, supra; Hawkins v. State ex rel. Read, 1865, 24 Ind. 288; State v. Morgan, supra.

Relator's insistence on his right to a change of venue from Marion County Municipal Court, Room 3, on the felony charge may have, with good reason, been prompted by an unfortunate statement made in the case of Carson v. State, 1932, 204 Ind. 273, 278-279, 183 N.E. 544, 546. The sole question in that case was whether or not an affidavit charging a felony was sufficient without...