State ex rel. Steers v. Criminal Court of Lake County

• Decision Date: 25 May 1953
• Docket Number: No. 29035,29035
• Citation: 232 Ind. 443,112 N.E.2d 445
• Parties: STATE ex rel. STEERS, Atty. Gen. v. CRIMINAL COURT OF LAKE COUNTY et al.
• Court: Indiana Supreme Court

Page 445

112 N.E.2d 445

232 Ind. 443

STATE ex rel. STEERS, Atty. Gen. v. CRIMINAL COURT OF LAKE COUNTY et al.

No. 29035.

Supreme Court of Indiana.

May 25, 1953.

Rehearing Denied June 17, 1953.

Edwin K. Steers, Atty. Gen., Carl Humble, Deputy Atty. Gen., for appellant.

William J. Murray, Judge Lake Criminal Court, Crown Point, pro se.

Harry S. Long, Sp. Judge Lake Criminal Court, Crown Point, pro se.

E. Miles Norton, Crown Point, for appellees.

EMMERT, Judge.

This is an original action by which the relator sought an alternative writ of mandamus and a temporary writ of prohibition. The issues here involve the jurisdiction of Harry Long as Special Judge of the Criminal Court of Lake County in Cause No. 23620, entitled The State of Indiana v. C. Ballard Harrison, wherein said Harrison was found guilty of perjury by a jury, upon which verdict he was sentenced to the Indiana State Prison for a term not less than one nor more than ten years. On appeal we affirmed the judgment. Harrison v. State, Ind. 1952, 106 N.E.2d 912. A petition for rehearing was overruled October 6, 1952.

We take judicial notice of the record in this previous appeal. Rooker v. Fidelity Trust Co., 1931, 202 Ind. 641, 177 N.E. 454; Blankenbaker v. State, 1929, 201 Ind. 142, 166 N.E. 265; Robbins v. State, 1926, 197 Ind. 304, 149 N.E. 726. The judgment on the verdict was rendered the 5th day of February, 1951, which was during the January term of the trial court. By § 4-2309, Burns' 1946 Replacement, the trial court has two terms each year, one beginning the first Monday of January, and the other beginning the first Monday of July. After our mandate in the appeal had been certified to the trial court, on December 3, 1952, Harrison filed a petition for a suspended sentence. Notice was given the Prosecuting Attorney of Lake County and the Attorney General, that Harrison would file a motion to suspend his sentence, which proceeding was resisted by the Attorney General, but for some unexplained reason the Prosecuting Attorney refused to participate in the proceedings.

On December 26, 1952, the Special Judge purported to suspend the sentence by an order book entry, a certified copy of which is attached to the relator's petition. ¹ Thereafter the Attorney General moved the regular presiding judge of the Lake Criminal Court to expunge this record, which he refused to do, and we issued the alternative writ of mandamus ordering the regular presiding judge to expunge the record or show cause why it should not be done.

The respondents first assert that the Attorney General had no authority to appear and object to the proceedings in the trial court to suspend the sentence or to move the regular presiding judge to expunge the record of a purported suspension of sentence. It is true the Attorney General of Indiana has no common law powers, and that his rights, powers and duties are statutory. State ex rel. v. Home Brewing Co., 1914, 182 Ind. 75, 105 N.E. 909; Davis v. Pelley, 1952, 230 Ind. 248, 102 N.E.2d 910; State ex rel. Young v. Niblack, 1951, 229 Ind. 596, 99 N.E.2d 839; Ford Motor Co. v. Treasury Dept., 1945, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389. However, by § 49-1924, Burns' 1951 Replacement, Acts 1941, ch. 109, § 6, p. 292, the Attorney General's powers were enlarged. This section provides in part that the Attorney General, 'when, in his judgment, the interest of the public requires it, he shall attend the trial of any party accused of crime, and assist in the prosecution; and (b) represent the state of Indiana in any matter involving the rights or interests of the state, including actions in the name of the state of Indiana, for which provision is not otherwise made by law.' We do not believe the Legislature intended to create any twilight zone in the prosecution of an accused. We hold the authority of the Attorney General extended to this proceedings had after the entry of judgment. The Attorney General had authority to resist the purported modification of the judgment, and he has authority to prosecute this original action to protect the validity of the original judgment entered on the verdict.

The statute concerning suspension of sentences provides, 'The several circuit and criminal courts * * * shall have power, in any case where any person shall have been convicted of a felony or misdemeanor, * * * upon the entry of judgment of conviction of such person, to suspend such sentence and parole such person, by an order of such court, duly entered of record as a part of the judgment of the court in such case * * *. Provided, That the court may not suspend the execution of sentence after the defendant shall have commenced to serve his sentence of imprisonment.' Section 9-2209, Burns' 1942 Replacement. The proviso was intended to prohibit the trial judge from changing a judgment during the same term it was rendered after the defendant had begun serving his sentence.

"All judgments regularly entered must become final at the end of the term. After that time the courts which entered them have no power to set them aside, except such as may be given by statute, unless some proceeding for that object has been commenced within the term and has been continued for hearing, or otherwise remains undisposed of.' Freeman on Judgments (5th Ed.) § 196, p. 381; In re Saric [1925], 197 Ind. 1, 149 N.E. 434.' Vuckowich v. State, 1929, 201 Ind. 194, 198, 199, 166 N.E. 771, 772. See also State ex rel. Thomas v. Murray, Judge, 1942, 219 Ind. 461, 39 N.E.2d 450; Schaaf v. State, 1943, 221 Ind. 563, 49 N.E.2d 539.

Although a special judge has jurisdiction to rule upon a motion for new trial, sign bills of exceptions, and to comply with the mandate of a court of review, the general rule is his jurisdiction terminates after the judgment becomes final. Hays v. Hays, 1939, 216 Ind. 62, 22 N.E.2d 971; State ex rel. Wabash Valley Coal Co. v. Beasley, 1943, 221 Ind. 274, 47 N.E.2d 324; State ex rel. Uservo v. Circuit Court of Huntington County, 1940, 217 Ind. 297, 27 N.E.2d 79. In this original action the term had expired in which the judgment was entered, the appeal had been determined and the mandate of this court certified to the trial court.

In State v. Smith, 1910, 173 Ind. 388, 390, 90 N.E. 607, 608, Smith on February 11, 1907, had entered a plea of guilty to a gaming charge, upon which on February 19th the court entered a judgment. On July 23, 1908, the trial court suspended the payment of the fine. This court held that this was unauthorized by the statute and said, 'It is evident that said statute does not attempt to authorize such courts 'to suspend sentence' and 'parole such persons' after final judgment has been rendered in such case. The order suspending 'sentence' and 'paroling' such person must be entered as a part of the judgment of conviction; and, if such order is not then made and entered, the court has no authority under said statute to make such order afterwards. State v. Robbins [1890], 124 Ind. 308, 24 N.E. 978, 8 L.R.A. 438; Gray v. State [1886], 107 Ind. 177, 8 N.E. 16. As the order suspending the collection of said fine so long as appellee 'behaves well' was made long after the final judgment of conviction was entered, the same was at least erroneous.'

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