State ex rel. Spencer v. Criminal Court of Marion County
| Decision Date | 13 July 1938 |
| Docket Number | 27103. |
| Parties | STATE ex rel. SPENCER v. CRIMINAL COURT OF MARION COUNTY et al. |
| Court | Indiana Supreme Court |
Edward H. Knight and Oscar C. Hagemier, both of Indianapolis, for relator.
F W. Patrick and H. K. Bachelder, both of Indianapolis, for respondents.
This is an original action seeking a writ of prohibition against the respondents. It is alleged in the petition that the relator is the duly elected, qualified, and acting prosecuting attorney of Marion County; that the respondent, Frank P. Baker, acting as the sole judge of the Criminal Court of Marion County, upon his own motion, and when no action or proceeding of any character respecting the subject matter was pending, entered an order appointing the respondents, Harold K. Bachelder and Fae W. Patrick, as special prosecuting attorneys, to investigate suspected or rumored violations of law in connection with the primary election held in Marion County in May, 1938; and that the respondent judge has ordered the impounding of all ballots and documents used in such election, for use of the grand jury and inspection of the special prosecutors; that the relator and his staff of deputies are fully qualified willing, and able, to investigate any irregularities which shall come to their notice in connection wth such election.
It is further alleged that contests respecting the nomination for the offices of mayor and sheriff have been instituted in the Marion Circuit Court; that ballots are being recounted; that the results of the recount in certain precincts have been released to the press by the recount commissioners and have indicated discrepancies in certain precincts between the official vote and the recount vote, and that certain other facts have appeared which may, upon investigation, reveal offenses against the State of Indiana in connection with such primary election; that, as yet, no particular person has been definitely identified with and accused of any illegal acts and that, until further investigation of the facts by the relator and the grand jury, the guilt or innocence of any persons in any such matters cannot be determined; that a new grand jury is about to be summoned for service in July, 1938 that the completion of the recount of the ballots will require most of the month of July, and that, until completed the ballots are in the official custody of the circuit court in whose jurisdiction the recounts are being made; that the relator intends to undertake an investigation whenever the ballots and documents are fully available; that only one deputy connected with relator's staff had any connection with such primary election, and that that deputy served only as a clerk of the board in one of the precincts where certain discrepancies appeared; that no facts have been reported to the relator which disclose any violation of the law by such deputy, and that if there were violations of law by such deputy they were not in respect to or connected with his duties as a prosecuting attorney; that he and his staff of deputies are ready, able, and willing to perform fully and effectually all of his official duties as prosecuting attorney, including the investigation of any possible law violations in connection with such primary election, and assisting the grand jury in such an investigation; that the respondent judge of the Criminal Court of Marion County has no jurisdiction to interfere with the relator in the performance of his official duties, nor to supplant him as prosecuting attorney and appoint others of his own choosing to function as prosecuting attorney.
An order is prayed prohibiting the respondents from proceeding to carry out the order of the respondent court above referred to, or from interfering in any manner with the relator or with the grand jury in the performance of their official duties. Upon the filing of the petition, a temporary writ issued.
The respondents, Bachelder and Patrick, have filed no return, and it is thought that they are not necessary parties, since they could act only upon authority of the respondent court and judge.
The respondent judge has filed a return in which it is alleged that 'there was rather wide spread acceptance of the fact that said primary election was corrupt'; that the results of the recount have come to the attention of the respondent from time to time, and have 'confirmed the public impression that said primary was corrupt; * * * that one of the first of said apparently false returns to be found in said recount was one signed and certified to by a deputy prosecutor in the office of the relator'; that the respondent was advised that the relator and his office staff were supporters of one of the candidates; that the facts were such as to 'create a strong suspicion of...
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