State ex rel. Reichert v. Youngblood

• Decision Date: 28 May 1947
• Docket Number: 28308.
• Parties: STATE ex rel. REICHERT v. YOUNGBLOOD.
• Court: Indiana Supreme Court

73 N.E.2d 174

225 Ind. 129

STATE ex rel. REICHERT v. YOUNGBLOOD.

No. 28308.

Supreme Court of Indiana

May 28, 1947

Theodore Lockyear, Elmer Q. Lockyear, Benjamin F Zieg and French Clements, all of Evansville, for relator.

Albert Ward and Palmer K. Ward both of Indianapolis, and R. Owen Williams and W. C. Welborn, both of Evansville, for respondent.

EMMERT Judge.

This is a petition for alternative writ of mandate brought by the relator, Manson L. Reichert, against the regular presiding judge of the Vanderburgh Circuit Court. The petition together with the exhibits made a part thereof, states in substance that on April 28, 1947 the relator offered to file in the Vanderburgh Circuit Court a verified petition alleging that on the 3d day of April the grand jury of the Vanderburgh Circuit Court for the March Term 1947 returned three separate indictments against him, which were docketed in said court as causes numbered 3501, 3503 and 3505; that in Cause No. 3501 he was charged in one count with the crime of malconduct misfeasance and oppression in office as mayor of the city of Evensville, that in Cause No. 3503, wherein the relator was charged by indictment in nine counts with the offense of corrupt practices, in counts 3, 4, 5, 6, 8 and 9 the time of the alleged offenses was barred by the statute of limitations, and the court sustained relator's motion to quash each of said counts, that in Cause No. 3505 he was charged in one count with the crime of false pretenses.

That on April 22, 1947 said grand jury returned an additional indictment in two counts against the relator, charging him with the crime of malconduct, misfeasance and oppression in office as mayor of the city of Evansville. Relator further alleges he has been the mayor of Evansville since January 1 1943 and at and before the primary election in May he was a candidate for renomination for said office and that he was, during the times alleged, the county chairman of one of the major political parties. Relator further alleges that before the time of drawing, impaneling, swearing and instructing said grand jury, he was not charged with any crime, and was not in custody or on bail to answer any offense or crime, and that he had no personal knowledge that the grand jury intended to investigate his conduct, or was going to return any indictments against him, and he was not present in the Vanderburgh Circuit Court, either in person or by counsel, at the time the March Term grand jury was impaneled, sworn and instructed by the court, and that therefore he has had no opportunity to challenge said grand jurors, or any member thereof, but that he presents his petition at the earliest opportunity after discovering the facts stated in his petition.

Relator in said petition further charged in substance that a certain member of said grand jury, was a political enemy of this relator; that relator as mayor discharged the said grand juror from his employment with the city of Evansville, but that thereafter said grand juror obtained employment with the state of Indiana, but that later he was discharged from his employment with the State, and that said grand juror blamed the relator for said discharge.

That on the 5th day of November, 1946 said grand juror was a political worker at the polls in Precinct No. 8 in the city of Evansville where he was arrested by an election sheriff for alleged violation of the election laws; that thereafter said grand juror wrongfully blamed relator for his arrest.

That on the 20th day of March, 1947 and after the impaneling of said grand jury said grand juror voluntarily informed two police officers that they were being investigated by the grand jury, that the prosecuting attorney of Vanderburgh Circuit Court was out to get them before said grand jury, but that he, the said grand juror, controlled said grand jury and would control the votes of himself and two other members thereof, and would see that the two police officers were not indicted; that on the 13th day of April, said grand juror informed one of said policemen that the grand jury was continuing the investigation of his conduct but that he could still control the votes of other members of the grand jury and that said policeman would not be indicted.

That upon various occasions the said grand juror related to various persons how he voted with reference to the return of various indictments returned by said grand jury.

That on the 23d day of April, 1947 said grand juror reiterated to divers persons that he was prejudiced against the relator because of loss of his position as a state governmental employee, and that he could not impartially act as a grand juror so far as relator was concerned, and that he was ready to make such a statement to the Vanderburgh Circuit Court.

Relator further charged that said grand juror since the time he was drawn as a grand juror for the March Term, and at the time he was impaneled, and since becoming a member of said grand jury, and to the date of his offer to file the petition with the Vanderburgh Circuit Court, had the design, purpose and intent of wrongfully indicting the relator and that said misconduct upon his part was illegal, contemptuous to the Vanderburgh Circuit Court, and prejudicial to the substantial rights of the relator.

Said relator further alleged 'That after being drawn as a Grand Juror and prior to being impanelled, sworn and instructed as such, said ...... (grand juror) informed divers persons that he knew how he became a member of said Grand Jury, and that said Grand Jury was going to indict this petitioner and informed divers persons in words to this effect: 'I know how I got on the Grand Jury.' 'We are going to get the Mayor. The Mayor is going to be indicted by the Grand Jury, here's where we put the S_____B_____ in and here's where we will take him out.''

Relator further alleged that he believed that unless discharged said grand jury would return other erroneous indictments against him by reason of the prejudice and misconduct of said grand juror; that relator was a resident and citizen of Vanderburgh County, Indiana and his substantial rights as a citizen were being violated and impaired. Relator further alleges he has no other adequate remedy available to him except the issuance of a mandate. The petition to the Vanderburgh Circuit Court prayed that relator be permitted to introduce evidence in support of his petition, and that upon hearing of the evidence the court order the discharge of said grand juror as a member of the March Term 1947 Grand Jury, and that said grand jury be discharged, and for other proper relief.

The respondent has filed his verified response and return to the temporary writ issued by this court April 30th, in which respondent alleged he is the duly elected, qualified and acting judge of the Vanderburgh Circuit Court; that relator, by his attorneys, did offer to file the said described petition with the Vanderburgh Circuit Court; that thereupon the prosecuting attorney objected to the filing of said petition whereupon the court took the matter under advisement; that thereafter on April 29th the court heard oral arguments by counsel for relator and the prosecuting attorney, and thereupon sustained the objection to filing said petition and denied the right of petitioner to file said petition. Respondent denies that the substantial rights of the relator as a resident and citizen of Vanderburgh County will be impaired if he is not permitted to file said petition and further denies there is no other adequate remedy available to the relator except the issuance of a mandate from this court.

He further alleges that the petition was ex parte with no defendants thereto and no summons issued thereon, and that he, as judge, decided said petition did not give the Vanderburgh Circuit Court any jurisdiction to grant the relator any remedy by due course of law, and that said court had no jurisdiction over the subject matter contained in said petition, and that it had no jurisdiction over the particular petition; that said petition was a collateral attack on the integrity of the grand jury, and that the relator in said petition did not allege he was innocent and that the matters referred to and set out in said petition 'could only be properly and legally presented by relator directly in said respective indictments already returned against him, or directly in proceedings where indictments may be returned against him, if any, * * *.'

Respondent further alleges he 'is not yet of the opinion that said Grand Jury has been in session long enough, and the public interests do not require that it should adjourn'; that said grand jury 'has never reported to respondent that it is through with its work or completed the order of inquiry as commanded by law'; 'That there is no provision under the law for the challenge of an individual grand juror, or to the array, by the relator when called to plead to an indictment against him, and that there is no provision under the law in Indiana which permits relator, either before or after indictment, after the grand jurors have been impaneled and sworn, to challenge either an individual on such grand jury, or to challenge the array, on account of bias or prejudice entertained by said juror or jurors against him, or for any reason whatever as stated in relator's petition'; and that the relator should 'raise the questions presented by his said petition by a proper plea directed to indictments returned against him'; and that all of these acts done in said manner were done in the exercise of sound judicial discretion and this court 'has neither the power, jurisdiction nor authority, by mandate, to order or direct him to change his said decision, or order or direct him to receive...