State v. Beckwith

• Decision Date: 21 October 1944
• Docket Number: 27992-27994.
• Citation: 57 N.E.2d 193,222 Ind. 618
• Parties: STATE v. BECKWITH et al. (three cases).
• Court: Indiana Supreme Court

57 N.E.2d 193

222 Ind. 618

STATE v. BECKWITH et al. (three cases).

Nos. 27992-27994.

Supreme Court of Indiana

October 21, 1944

Appeal from Criminal Court, Marion County; Harvey A Grabill, Special judge.

Sherwood Blue, Pros. Atty. Marion County, of Indianapolis, James A Emmert, Atty. Gen., and Saul Rabb and Frank Haupt, both of Indianapolis, for appellant.

Rochford & Rochford, Russell J. Dean, and Robert L. Carrico, all of Indianapolis, for appellees.

RICHMAN Judge.

One judgment was rendered below by a special judge sustaining the several motions of appellees for discharge upon indictments in three cases charging them with embezzlement of large amounts of public funds while they were acting as deputy clerks of the Municipal Court of Marion County from January 1, 1935 to January 1, 1939. The parties to the three appeals have briefed them as one based on the transcript in No. 27992 which comprehends all of the subject matter of the other transcripts. From the order book entry of the judgment it appears that the special judge delivered a written opinion which, at our request, though not in the record, was read in oral argument. It is apparent therefrom that he considered matters not in the transcript before us. It is certified by the clerk below as a complete transcript of the entire record, the parties have accepted it as such and by it they and we are bound.

The indictments were returned by the Grand Jury, examined and the amount of bail endorsed thereon in open court by the judge thereof July 2, 1941, the Wednesday before the July term began on the following Monday. These proceedings are shown by proper order book entry currently made by the clerk. From that time until the present regular judge assumed office January 1, 1943, not a single order book entry was currently made of any of the proceedings in the three cases. The several motions for discharge were filed May 5, 1943 during the January 1943 term. Intervening were the July 1941 term and the two terms of 1942.

Two motions for nunc pro tunc entries were filed, one by the State May 5, 1943, and the other by appellees a few days later. After hearing and submission of evidence the present regular judge of the court sustained some and overruled others of the specifications of the motions. From those sustained, and the nunc pro tunc entries accordingly made, as of dates prior to January 1, 1943 and from the regularly made entries thereafter, all as copied in the transcript, the proceedings so far as they need here be detailed were as follows: Entry made as of October 3, 1941 shows that defendant Early 'in open court makes and files his recognizance bond' which, copied therein, names Alice Early surety with him on a $2500 bond dated October 2, 1941, taken and approved by the clerk October 3, 1941. It is followed by an affidavit of Alice Early that Anna Brady died March 27, 1941. Appellees attach some significance, which we fail to see, to the fact that this affidavit is dated June 20, 1941.

In November, 1941, the then regular judge of the court disqualified himself and submitted a list of names from which the parties might select a special judge. In such manner two special judges were selected each of whom declined to serve and a third was selected and qualified May 28, 1942. On June 16, 1942, appellee Ross in open court executed his recognizance bond in Cause 74577. The defendants on July 16, 1942, waived arraignment and entered pleas of not guilty. This special judge served until April 17, 1943, when he resigned. Aside from the proceedings above mentioned no steps were taken while he was serving.

The only data in the record upon which we may rest our conclusions are these order book entries. A bill of exceptions discloses that 'At said hearing, oral arguments were heard on behalf of the defendants and the State, and both sides rested without tendering or offering any evidence in the matter. The court took judicial knowledge and notice of the record of the case and stated that he would make his ruling solely and wholly upon the record in the case, to which statement there was no objection by any of the parties, and the matter was taken under advisement by the court. Thereafter on the 17th day of January, 1944, the court handed down his written opinion based upon the records in the case and discharged said defendants from further prosecution upon said indictments. Immediately after the court pronounced judgment, the State of Indiana, through its Prosecuting Attorney, Sherwood Blue, objected to the court's ruling on said motions for discharge without first hearing evidence thereon, and objected and excepted to the ruling of the court.'

The Indiana Bill of Rights, Art. I, § 12, provides that 'Justice shall be administered * * * speedily, and without delay.' So far as we have been able to find, the first attempt by statute to implement this constitutional provision was in 1881, when two sections which with slight amendment now stand as §§ 9-1402 and 9-1403, Burns' 1942 Replacement, §§ 2238 and 2239, Baldwin's 1934, were enacted, the former providing that 'no defendant shall be detained in jail, without a trial, on an indictment or affidavit, for a continuous period embracing more than two (2) terms after his arrest and commitment thereon * * *' except for the same three contingencies mentioned in the latter which reads as follows: 'No person shall be held by recognizance to answer an indictment or affidavit without trial for a period embracing more than three (3) terms of court, not including the term at which a recognizance was first taken thereon, if taken in term time; but he shall be discharged unless a continuance be had upon his own motion, or the delay be caused by his act, or there be not sufficient time to try him at such third term; and, in the latter case, if he be not brought to trial at such third term, he shall be discharged, except as provided in the next section.'

Appellees' motions for discharge track this section confirming the State's assertion that appellees, originally at least, predicated their right to discharge solely upon the provisions of the statute. They severally allege therein that on the same day, July 2, 1941, when the indictments were returned, they were 'arrested and let to bail' and since have 'stood ready for trial; and that said cause of action herein has gone through and beyond three full terms of Court, not including the term at which the recognizance was first taken, without any delay upon the part of this defendant.'

If appellees relied solely on the statute we think the special judge erred in sustaining their several motions. In Woodward v. State, 1910, 174 Ind. 743, 93 N.E. 169, 170, the appellant alleged error in overruling such a motion. The court said, 'That when any one seeks the benefit of a statute he must by allegation and proof bring himself clearly within its terms.' (Our italics.) The court held his motion defective for failure to allege that the delay was without his fault. Several other cases are to the same effect but none deal with the question of proof. The motion itself is not proof even when it is verified which was not the case here. Soucie v. State, 1941, 218 Ind. 215, 226, 31 N.E.2d 1018, 1022. The statute prescribes no procedure. Under analogous circumstances we said recently in Kuhn v. State, 1944, 222 Ind. 179, 52 N.E.2d 491, 492: 'Perhaps there should be a rule prescribing the procedure, but none now exists. In the absence thereof, the pleading and proof of the issue must be governed by the procedure applicable to other similar issues presented by motion. If the evidentiary facts are admitted there may still exist a question as to their legal effect. If the facts are denied they must be proved.'

Here there was no admission of any allegations in the motions and their denial must be assumed from the fact that the State resisted.

If from the record before us, in the absence of evidence, the special judge might have assumed that the delay was not caused by any act of appellees, he certainly was going too far in assuming that appellees were arrested and let to bail on July 2, 1941. They asked the regular judge to make a nunc pro tunc entry to that effect. He refused for lack of any memorial upon which it might be based. Nothing transpired, according to the record, after the indictments were returned and the amount of bail endorsed thereon, until October 3, 1941 (July term) when Early made his recognizance. The bond of Ross was not filed until June 16, 1942. The record is silent as to recognizance made by the other two appellees. Without any indication in those recorded, or the entries of their filing and approval, that they were in lieu of prior similar undertakings, and none is shown, is it not fair to assume that they were the only ones given by these appellees? But appellees resort to the doctrine of judicial notice. From the fact that there is no record indicating that they were in jail and the further fact that they appeared in person at the time set for arraignment they say that the special judge might take judicial notice of their arrest and letting to bail upon the presumption that the sheriff performed his duty. We have some trouble in accepting this theory even in part, but if it be presumed that at some time after the indictments were returned they were arrested and in some manner satisfactory to the court released for appearance when notified, upon what reasonable grounds could the special judge, or we, presume that their arrest and release occurred between July 2 and July 7, 1941? There is a record of what happened July 2, which excludes an inference of any further proceedings on that day. The next day was available for action but Friday, July 4 was a holiday, and Saturday the...