State ex rel. Spurlock v. Reeves

• Decision Date: 27 September 1949
• Docket Number: 28608.
• Citation: 87 N.E.2d 725,227 Ind. 595
• Parties: STATE ex rel. SPURLOCK v. REEVES.
• Court: Indiana Supreme Court

87 N.E.2d 725

227 Ind. 595

STATE ex rel. SPURLOCK v. REEVES.

No. 28608.

Supreme Court of Indiana

September 27, 1949

Lockyear & Lopp, Evansville, for appellant.

R Owen Williams, Evansville, for appellee.

JASPER Judge.

This is an original action brought by the relatrix against the Judge of the Circuit Court of Vanderburgh County for a writ of mandate and a writ of prohibition requesting that an order issue commanding the respondent to discharge the relatrix from custody, detention, hearing and inquisition, and that an alternative writ of prohibition issue prohibiting the respondent from further proceeding in the cause pending in the Vanderburgh Circuit Court.

The petition alleges that the relatrix is charged with the crime of first degree murder by affidavit filed in the Vanderburgh Circuit Court; that, pursuant to said affidavit being filed the relatrix was later arrested and brought before the respondent; that said respondent conducted a preliminary hearing, and, on the 30th day of August, 1949, ordered the relatrix held for investigation by the grand jury of the Vanderburgh Circuit Court, and without bond.

The relatrix challenges the jurisdiction of the Vanderburgh Circuit Court in conducting a preliminary hearing on the affidavit filed for the crime of murder in the first degree.

The petition of the relatrix fails to comply with Rule 2-35 of this court.However, this was cured by the respondent's return, setting out the certified copies of all pleadings orders, and entries pertaining to the subject matter, and therefore this action is being decided upon its merits.

The respondent in his return contends that he by virtue of his office as Judge is vested with authority to act as a magistrate in conducting a preliminary hearing.

The relatrix properly questions the jurisdiction of the respondent to conduct a preliminary hearing.Since the criminal procedure of this state is statutory, we must look to legislative enactment for those who may properly conduct a preliminary who may properly conduct a preliminary 161, 165, 69 N.E. 465.Under § 9-701, Burns' 1942 Replacement, the right to conduct preliminary hearings is specifically vested in the magistrates of this state.The term 'magistrate' is defined in § 9-704, Burns' 1942 Replacement, as follows: 'The term 'magistrate' as herein used shall be construed to include and mean any justice of the peace, city judge or mayor acting as city judge.'

It is noted that the Legislature, by the above enactment, followed the words 'to include' with the words 'and mean,' and thereby confined the preliminary hearing to justices of the peace, city judges or mayors acting as city judges.The language became exclusive rather than inclusive.Department of Treasury of Indiana v. Muessel,1941218 Ind. 250, 256, 32 N.E.2d 596.Circuit court judges are therefore not included in the definition of a magistrate, and have no jurisdiction to...