State ex rel. Schaaf v. Rose

• Decision Date: 21 December 1943
• Docket Number: 27941.
• Citation: 51 N.E.2d 856,222 Ind. 96
• Parties: STATE ex rel. SCHAAF et al. v. ROSE, Special Judge, et al.
• Court: Indiana Supreme Court

51 N.E.2d 856

222 Ind. 96

STATE ex rel. SCHAAF et al. v. ROSE, Special Judge, et al.

No. 27941.

Supreme Court of Indiana

December 21, 1943

Richard P. Tinkham and F. C. Crumpacker, both of Hammond, and George E. Hershman, of Crown Point, for relators.

James A. Emmert, Atty. Gen., Frank Hamilton, First Deputy Atty Gen., and Frank E. Coughlin, Deputy Atty. Gen., for respondents.

PER CURIAM.

This is an original action by relators asking an order manating the Special Judge of the Lake County Criminal Court to grant a change of venue from the county in cause number 20,000 pending in said court, entitled State of Indiana v. Mary Grace Wells Schaaf, Edward W. Schaaf, and Coleman Melvin, or, in the alternative, in the event such relief is not granted, asking that said judge be mandated to grant a change of venue from the judge. The complaint also asks for all further and proper relief in the premises. The Attorney General has appeared on behalf of respondents and the State of Indiana.

In the July Term, 1940, of the Criminal Court of Lake County an indictment was returned against relators and one Richard Melvin charging them with conspiracy to obtain money by false pretenses and to file false claims. On application of defendants in that case a change of venue was granted from Lake County to Newton County on the ground of bias and prejudice existing in the former county. The case continued to pend in Newton County until December 4, 1942, at which time, upon representation that a new prosecution was necessary, the Newton Circuit Court ordered relators and the said Richard Melvin to elect whether such new prosecution should be brought in Newton County or in Lake County. The relators contended that the procedure was illegal and refused to elect. However, the defendant, Richard Melvin, did elect that such new prosecution should be brought in Newton County. Thereupon, on order of the Newton Circuit Court, Richard Melvin furnished a recognizance bond to appear to the new prosecution in the Newton Circuit Court, which was subsequently filed and charged the same offense. Also pursuant to order of the Newton Circuit Court, relators furnished separate recognizance bonds to appear to a new prosecution when filed in the Criminal Court of Lake County. In the Janinal Term, 1943, of the Criminal Court of Lake County an affidavit was filed charging relators with the same offsense that had been charged in the original indictment. The relators, by an appropriate motion questioned the jurisdiction of the court, and contended that jurisdiction remained in the Newton Circuit Court. Relators also filed a motion and affidavit for a change of venue from the county in the new prosecution. This action prays for the relief asked upon the ground that the bias and prejudice of the citizens of Lake County, Indiana, against relators was adjudicated by the ruling granting the first change of venue from the county.

The proceedings had in the Newton Circuit Court, which resulted in the orders to relators and Richard Melvin to elect as to the county in which new prosecutions would be filed, were taken under authority of section 9-1308, Burns' 1933, § 2229, Baldwin's 1934. This statute was intended to preserve to defendants in a criminal...