State ex rel. Williams v. Ellis
| Citation | 112 N.E. 98,184 Ind. 307 |
| Decision Date | 26 January 1916 |
| Docket Number | 22,868 |
| Parties | State of Indiana, ex rel. Williams v. Ellis, Judge |
| Court | Supreme Court of Indiana |
Original action in the Supreme Court by the State of Indiana on the relation of Gene Williams, against Frank Ellis, as judge of the forty-sixth judicial circuit of Indiana, for writ of mandate. Defendant files answer to the complaint, to which the relator demurs.
Demurrer overruled.
R. S Gregory, John McPhee, S. A. D. Whipple, Frank B. Jaqua and White & Haymond, for relator.
Charles W. Smith, Charles Remster, Henry H. Hornbrook and Albert P. Smith, for defendant.
Original action in this court under act of March 8, 1915 (Acts 1915 p. 207), for writ of mandate to compel defendant, judge of the Delaware Circuit Court, to call a named, elected and acting judge, to hear a cause in which a change of judge had been granted, and to prohibit further proceedings until the termination of this action. The complaint avers that on and prior to June 14, 1915, defendant Ellis was the regularly elected and acting judge of the Delaware Circuit Court and that J. Frank Mann was the regularly elected and acting prosecuting attorney of Delaware County; that previous to said June 14, relator, Gene Williams, was indicted in ten different criminal cases; that on said day relator filed his motion in each case for a change of judge, and each motion was sustained; that thereupon relator and Mann, prosecuting attorney, appeared in open court, presided over by defendant Ellis, and agreed that certain named judges of circuit courts of Indiana should be called to hear and try each of said causes in which relator is defendant, and orally moved that said judges be called to hear the same; that afterwards, on June 18, 1915, the court, defendant presiding, overruled each of said motions and thereupon announced that on the following day five disinterested and competent persons would be nominated by the court from which a judge could be selected to hear each cause. The relator prays for a mandatory order against defendant requiring him to call, to try each cause, the circuit court judge agreed upon by relator and the prosecuting attorney, and to prohibit further proceedings until the final hearing in this case.
In defendant's return to the rule to show cause it is averred that more than a year before the commencement of this proceeding, said prosecuting attorney duly appointed relator as deputy prosecuting attorney for the circuit, and that ever since relator has acted in such capacity; that on March 8, 1915, the grand jury of Delaware County was in session, and, in writing, reported to the court that it desired to investigate the office of prosecuting attorney, and requested the appointment of a special prosecuting attorney to assist it in such investigation; that subsequently, on the same day, said Mann, appeared in open court and filed his written consent to the requested appointment, conditioned on its limitation to the matters relating to the office of prosecuting attorney; that thereafter on the same day, the court appointed William A. Thompson as a special prosecuting attorney to assist the grand jury in matters wherein Mann, regular prosecuting attorney, was incompetent to act, because of personal interest; that Thompson accepted the appointment; that subsequently, on April 23, 1915, the grand jury returned the said ten indictments against relator, each of which charges relator with a crime growing out of his alleged actions connected with the office of prosecuting attorney, and while he was acting as such deputy; that after the return of the indictments, citizens of the county, by written petition, prayed the court to appoint said Thompson as special prosecutor to prosecute the said causes against relator, and that thereupon Mr. Mann, the regularly elected prosecuting attorney, appeared in open court and consented to the requested appointment; that Mr. Mann, after the return of the indictments against his deputy, openly declared his belief of relator's innocence of the offenses charged, and declared that he would be an important witness for relator at the trials of the causes; that thereafter the court, defendant presiding, by order duly entered did appoint Thompson as special prosecutor to represent the State of Indiana in each of the causes, in all future proceedings therein; that in the order it was found and adjudged that Mann was incapacitated from performing any duty in connection with the prosecution of the cases; that Thompson accepted the appointment; that relator still occupies the position of deputy and is actively engaged in the performance of the duties of his position; that on June 17, 1915, Mr. Mann departed from the State of Indiana, for an absence of many weeks, leaving relator in charge of the office.
The defendant admits the making and overruling of relator's motions as alleged in the complaint, and denies that Mr. Mann had any power to make any binding agreement with relator for the appointment of a special judge, and further avers that he did, on June 19, 1915, and before the petition herein was filed, nominate five named acting circuit court judges of Indiana from whom a judge in each cause may be selected. Acts 1915 p. 30. A demurrer was filed to defendant's return, which requires us to determine its sufficiency. Our statutory law authorizes a change of judge in certain contingencies. § 2074 Burns 1914, Acts 1905 p. 584, § 203. Section 204 of the public offense act of 1905 was amended in 1915, to read as follows: Acts 1915 p. 30. Sections 11 and 12 of article 7, of the Constitution of Indiana (adopted 1851), read as follows: Section 11. "There shall be elected in each judicial circuit by the voters thereof, a prosecuting attorney, who shall hold his office for two years." Section 12. "Any judge or prosecuting attorney who shall have been convicted of corruption or other high crime, may, on information in the name of the state, be removed from office by the supreme court, or, in such other manner as may be prescribed by law." The Constitution in nowise prescribes the duties of a prosecuting attorney. The office was unknown to our first Constitution (1816), and was, in its origin, as early as 1824, a creature of statute. State, ex rel. v. Home Brewing Co. (1914), 182 Ind. 75, 87, 105 N.E. 909. The office was carved out of that of the common-law office of attorney general, who originally discharged all the duties now devolving on the two officers. Prosecuting attorneys, as the name indicates, are officers of the court. People v. May (1855), 3 Mich. 598. But their official duties comprehend a wider scope than that of a mere attorney. 32 Cyc 689. In this State they can be removed from office only by this court, on previous conviction of corruption or other high crime. State v. Patterson (1914), 181 Ind. 660, 105 N.E. 228; State v. Redman (1915), 183 Ind. 332, 109 N.E. 184. Their duties are, in general terms, prescribed by statute. §§ 9405, 9406 Burns 1914, §§ 5863, 5864 R. S. 1881.
No small part of plaintiff's brief is devoted to the proposition that the Delaware Circuit Court had no right to remove the prosecuting attorney from the office to which he was regularly elected. The record discloses no removal from office, nor attempt in such direction. It presents only the questions, (1) Was Mr. Mann incompetent to prosecute relator, and, if so (2) Did the circuit court have power to appoint a special prosecuting attorney in the causes in controversy, and, if such appointment was valid, (3) Did the regular prosecuting attorney have the power, under the act of 1915 (Acts 1915 p. 30), to agree, on behalf of the State, to the selection of a judge to hear the causes in question? Was Mr. Mann, under the facts here alleged incompetent? Manifestly he was of the opinion that he was disqualified, for he consented to the appointment made by the court. Notwithstanding, relator contends that the order was void on its face, and that he has a right to demand that this prosecution be by the officer elected by the people. The prosecuting attorney has been held a judicial officer. State v. Henning (1870), 33 Ind. 189. Certainly he is invested with...
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