State ex rel. Walker v. Ratliff, 669S139

• Decision Date: 19 February 1970
• Docket Number: No. 669S139,669S139
• Parties: STATE of Indiana on Relation of William WALKER, Relator, v. Wesley W. RATLIFF, Jr., Special Judge, Hancock Superior Court, Respondent.
• Court: Indiana Supreme Court

Page 223

255 N.E.2d 223

253 Ind. 495

STATE of Indiana on Relation of William WALKER, Relator, v. Wesley W. RATLIFF, Jr., Special Judge, Hancock Superior

Court, Respondent.

No. 669S139.

Supreme Court of Indiana.

Feb. 19, 1970.

[253 Ind. 496] Melville E. Watson, Greenfield, for relator.

Peter D. Shumacker, Pros. Atty., Greenfield, for respondent.

ORIGINAL ACTION

GIVAN, Judge.

On the 23rd day of June the petitioner appeared before this Court to present his petition for writ of mandate wherein he asks this Court to enter an order commanding the respondent as Judge of the Hancock Superior Court to grant relator's discharge from custody on a charge of second degree murder on the alleged ground that he had been held for a period of 50 days following the making of a motion for discharge, which holding was in violation of Rule 1--4D of the Rules of the Supreme Court. At that hearing the petitioner was advised by this Court that it would deny such relief. The petitioner did, however, exercise his right following the conference to file his petition and transcript of the record with the Clerk of this Court.

An examination of the record in this case discloses that the petitioner was originally tried in July of 1967. This trial resulted in a verdict of guilty of second degree murder upon which the relator was sentenced to life imprisonment in the Indiana State Prison. From this conviction he appealed to this Court, and on November 15, 1968, the cause was remanded to the trial court with instructions to grant appellant's motion to quash an amended indictment and to grant appellant's motion for new trial. Upon certification of this Court's opinion to the trial court the cause was resubmitted to the Hancock County Grand Jury and an indictment returned charging the relator with second degree murder. To this indictment the relator addressed a plea in abatement, which was sustained on February 6, 1969. The court ordered the relator held without bond and the cause resubmitted at the next regular session of the grand jury. On February 10 relator filed his motion and demand for trial or discharge and a separate motion for discharge. His motion and demand for trial or discharge was filed pursuant to Burns' Indiana Statutes § 9--1131 which reads as follows:

'In any case where the defendant is charged with a felony, upon indictment, and the indictment has been quashed, and no grand jury is in session, or when the cause has been appealed to the Supreme Court and reversed on account of defects in the indictment, he shall have the right to demand that he be prosecuted by affidavit without delay; and if the prosecuting attorney fails to so prosecute, the defendant shall be discharged from custody; Provided, That, upon a statement by the prosecuting attorney that he is unable to procure from any one the necessary affidavit, the court, in its discretion, may hold the defendant to await the action of the next grand jury. (Acts 1905, ch. 169, § 196, p. 584.)'

This motion was complied with when on the 13th day of February, 1969, the grand jury returned an indictment charging second degree murder. The separate motion for discharge which was filed on ...