State v. Market, s. 1--673A106

• Decision Date: 22 October 1973
• Docket Number: Nos. 1--673A106,1--673A107,s. 1--673A106
• Citation: 302 N.E.2d 528,158 Ind.App. 192
• Court: Indiana Appellate Court
• Parties: STATE of Indiana, Plaintiff-Appellant, v. Jerry MARKET, Defendant-Appellee. STATE of Indiana, Plaintiff-Appellant, v. Davey Lee AVENATTI, a/k/a Lee Avenatti, Defendant-Appellee. STATE of Indiana, Plaintiff-Appellant, v. Roger OSBORNE, Defendant-Appellee. to 1--673A113, 1--573A101 and 1--573A102.

Page 528

302 N.E.2d 528

158 Ind.App. 192

STATE of Indiana, Plaintiff-Appellant, v. Jerry MARKET, Defendant-Appellee.

STATE of Indiana, Plaintiff-Appellant, v. Davey Lee AVENATTI, a/k/a Lee Avenatti, Defendant-Appellee.

STATE of Indiana, Plaintiff-Appellant, v. Roger OSBORNE, Defendant-Appellee.

Nos. 1--673A106A, 1--673A107 to 1--673A113, 1--573A101 and

1--573A102.

Court of Appeals of Indiana, Third District.

Oct. 22, 1973.

Malcolm H. Aukerman, pro se, Charles J. Eusey, Deputy Pros. Atty., Newport, for plaintiff-appellant.

James P. Savage, Clinton, Juhn B. McFaddin, Rockville, for defendants-appellees.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for intervenors.

ON APPELLEES' MOTION TO DISMISS

HOFFMAN, Chief Judge.

The State of Indiana by Malcolm H. Aukerman, Prosecuting Attorney, 47th Judicial Circuit, Vermillion County, is appealing the trial court's sustaining of motions to quash indictments on various grounds. The State of Indiana, by Theodore L. Sendak, Attorney General of Indiana, intervening on behalf of himself and the State of Indiana, moved this court to dismiss the appeals for the reason the the Attorney General had not appeared for the State. Defendant-appellees adopted the brief of the Attorney General in support of his motion to dismiss the appeals.

The sole issue raised is: Does the Prosecuting Attorney have the authority as granted to him be statute and by the Constitution of Indiana to appeal criminal cases from his county to the Court of Appeals of Indiana or the Supreme Court of Indiana, or is that right and duty the exclusive responsibility of the Attorney General under the statutes of Indiana?

It is the contention of the Prosecuting Attorney that his office was created by the Constitution of Indiana and, as such, any statute which purports to limit the inherent authority of a constitutional officer must be strictly construed.

Although constitutionally created, the duties of the Prosecuting Attorney are enumerated by statute. Art. 7, § 11 of the Constitution of Indiana provides as follows:

'Prosecuting attorneys.--There shall be elected in each judicial circuit by the voters thereof a prosecuting attorney, who shall hold his office for four years, and whose term of office shall begin on the first day of January next succeeding his election. The election of prosecuting attorneys under this section shall be held at the time of holding the general election in the year 1954 and each four years thereafter: Provided, that any such officer whose term is abridged by virtue of this section shall continue to serve until January 1, 1959.'

IC 1971, 33--14--1--4, Ind.Ann.Star. § 49--2504 (Burns Cum.Supp.1972), states as follows:

'Duties.--Such prosecuting attorneys, within their respective jurisdictions, shall conduct all prosecutions for felonies or misdemeanors and all suits on forfeited recognizances; and superintend, on behalf of counties or any of the trust funds, all suits in which the same may be interested or involved, and shall perform all other duties required by law.'

The statute which the Prosecuting Attorney contends attempts to limit his authority is the statute which enumerates the duties of the Attorney General. IC 1971, 4--6--2--1, Ind.Ann.Stat. § 49--1902 (Burns 1964), provides as follows:

'Duties generally.--Such attorney-general shall prosecute and defend all suits that may be instituted by or against the state of Indiana, the prosecution and defense of which is not otherwise provided for by law, whenever he shall have been geven ten (10) days' notice of the pendency thereof by the clerk of the court in which such suits are pending, and whenever required by the governor or a majority of the officers of state, in writing, to be furnished him within a reasonable time; and he shall represent the state in all criminal cases in the Supreme Court, and shall defend all suits brought against the state officers in their official relations, except suits brought against them by the state; and he shall be required to attend to the interests of the state in all suits, actions or claims in which the state is or may become interested in the Supreme Court of this state.'

The Prosecuting Attorney contends that the purpose of § 49--1902, supra, is to permit the Attorney General the right to appear in the Supreme Court. Without this statutory authority, a Prosecuting Attorney would not be able to turn to the Attorney General's office in seeking assistance on criminal appeals to the Supreme Court of Indiana since the latter would have no authority to appear before that court absent this statute. The Prosecuting Attorney contends that it is his constitutional duty to make a good faith effort to bring the accused before the court for trial, and it is his duty to determine when to commence and when to discontinue any particular prosecution; Halladay v. State (1923), 66 Mont. 111, 212 P. 861. He further contends that it is his duty to conduct all prosecutions, and that this duty is not complete until the defendant has been convicted, sentenced and the judgment has become final; citing: Bradley v. United States (1972), 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528; State ex rel. Cutsinger v. Spencer, Judge (1941), 219 Ind. 148, 41 N.E.2d 601.

This the Prosecuting Attorney contends, whether a prosecutor follows his case into another county, as in State ex rel. Neeriemer v. Daviess C.C., etc. et al. (1957), 236 Ind. 624, 142 N.E.2d 626, or whether he preserves his right to prosecute a case by appealing an adverse ruling on a motion to quash pursuant to IC 1971, 35--1--47--2, Ind.Ann.Stat. § 9--2304 (Burns 1956), the Prosecuting Attorney is engaged is his common law and statutory duty of conducting a prosecution. The Prosecuting Attorney further contends that where he has initiated an appeal, the Attorney General may request leave of this court to join the Prosecuting Attorney as counsel for the appellant, but he may not oust the Prosecuting Attorney as such counsel.

In response, the Attorney General contends that the courts of Indiana have long recognized the exclusive appellate responsibilities of the Attorney General in criminal cases:

'The Attorney General is, alone, authorized by law to prosecute and defend criminal or state prosecutions in this (Supreme) court.' Stewart v. The State (1965), 24 Ind. 142, at 144.

'The statute makes it the imperative duty of the attorney-general to represent the State in the supreme court in all criminal cases; and while the services of the prosecuting attorney may be and generally are accepted by the attorneygeneral, in behalf of the State, in such appeals, still the latter officer has the exclusive control and management of the case upon appeal.' The State ex rel. Board of Commissioners, etc. v. Jamison, Auditor (1895), 142 Ind. 679, at 684, 42 N.E. 350, at 351.

'When an appeal in a criminal cause, whether taken by the State or by the defendant, reaches this court, it then, under the law, becomes the imperative duty of the Attorney-General to represent the State therein.' State v. Sopher (1901), 157 Ind. 360, at 362, 61 N.E. 785, at 786.

'It is true that in a criminal cause, when an appeal taken either by the State or the defendant has once reached the appellate tribunal, then, so far as the State is concerned, the case passes under the control of the Attorney-General, and by virtue of the statute he becomes the exclusive representative of the state therein.' State v. Sutherlin (1905), 165 Ind. 339, at 345, 75 N.E. 624, at 644.

'He (the Attorney General) is required to appear in all criminal proceedings in the Supreme Court.' State ex rel. Powers v. Vigo, C.C., Criss, J., et al. (1957), 236 Ind. 408, at 412, 140 N.E.2d 497, at 499.

The Attorney General does not dispute the contention of the Prosecuting Attorney that his office is of constitutional origin while that of the Attorney General is statutory. However, he points out that in Indiana the authority rests with the Legislature to define the duties of both offices and that this statutory definition of their respective duties is conclusive. State ex rel. v. Home Brewing Co. (1914), 182 Ind. 75, 105 N.E. 909. The Legislature has defined the duties of these administrative officers in the statute which outlines the duties of the Attorney General ( § 49--1902, supra), and the statute which speaks to the duties of Prosecuting Attorneys ( § 49--2504, supra). The Attorney General contends that the fact that under common law a Prosecuting Attorney could represent the State in criminal appeals before the Supreme Court is now irrelevant because the Legislature has spoken on the matter in the intervening years and has expressly given that function exclusively to him.

Lastly, the Attorney General contends that State ex rel. Neeriemer v. Daviess C.C., etc., et al., supra, cited by the Prosecuting Attorney, which charges the Prosecuting Attorney with the Duty to follow the case to its ultimate termination, does not give him the right to prosecute an appeal. Neeriemer dealt with the limited question of whether a Prosecuting Attorney was required to remain in a case which he had initiated until the trial court entered a judgment and did not consider his appellante powers.

The issue here is centered around the interpretation of the two statutes which define the respective duties of the Attorney General and the Prosecuting Attorney. The fact that the latter was created by the Constitution of Indiana, while the former was created by statute, has no bearing upon their respective duties since their limits of authority have been outlined by statutory enactments. Neither statute specifically addresses itself to the area of criminal appeals, although § 49--1902, supra, provides that the Attorney General 'shall represent the state in all criminal cases in the Supreme Court.' (Emphasis supplied.) With the assumption of criminal jurisdiction in 197...