State ex rel. Pearcy v. Criminal Court of Marion County, Division II

• Decision Date: 08 July 1963
• Docket Number: No. 30410,30410
• Citation: 191 N.E.2d 700,244 Ind. 211
• Parties: STATE ex rel. Noble R. PEARCY, Prosecuting Attorney for the Nineteenth (19th) Judicial Circuit, Relator, v. The CRIMINAL COURT OF MARION COUNTY, DIVISION II, the Honorable Alan I. Klineman, Special Judge, Respondents.
• Court: Indiana Supreme Court

Page 700

191 N.E.2d 700

244 Ind. 211

STATE ex rel. Noble R. PEARCY, ProsecutingAttorney for the Nineteenth (19th) Judicial Circuit, Relator, v.The CRIMINAL COURT OF MARION COUNTY, DIVISION II, the Honorable Alan I. Klineman, Special Judge, Respondents.

No. 30410.

Supreme Court of Indiana.

July 8, 1963.

Noble R. Pearcy, Pros.Atty. for the Nineteenth Judicial Circuit, pro se.

Alan I. Klineman, Special Judge, Criminal Court of Marion County, Division II, pro se.

MYERS, Chief Justice.

This cause comes to us on a petition for a writ of prohibition and mandate presented by Noble R. Pearcy, Prosecuting Attorney for the 19th Judicial Circuit, relator.

There was pending in the Criminal Court of Marion County, Division II, CauseNo. CR 26320-Z, entitled 'State of Indiana vs. Eddie Lee Clark.'The defendant, Eddie Lee Clark, was charged by affidavit with having committed the criminal offense of rape.On December 3, 1962, the defendant filed an affidavit for change of venue from the Judge, which was thereupon granted, and the respondent, Alan I. Klineman, was selected and qualified as the Special Judge.

On the 18th day of April, 1963, the relator informed defendant's attorney and the office of the Special Judge that the State of Indiana was preparing and would file, on the following day, April 19, 1963, a motion for change of venue.On April 19th the relator did file such motion, before the commencement of trial, pursuant to the provisions of §§ 9-1322-1325, Burns' Ind.Stat., 1956 Replacement, with a copy being served upon the defendant's attorney.The Special Judge overruled the motion for change of venue from the Special Judge, and, after overruling a motion of the relator that the court reconsider the ruling, set the cause for trial jury on April 22, 1963, at 9:30 a. m.

On April 19, 1963, relator filed a petition before this court asking that a temporary writ of prohibition and an alternative writ of mandate be issued herein mandating the Special Judge to grant the change of venue, or, in the alternative, that the respondents show cause why such writ should not be made absolute; and that the respondents be prohibited and directed from any further acts in connection with the cause, except to grant the motion for change of venue from the Special Judge.

This court on the same day, being April 19, 1963, granted the temporary writ as requested by the relator, and it was served on the Special Judge.State ex rel. Berry, etc. v. Beecher, etc.(1961), ...