State v. Redman, 22,783

Citation109 N.E. 184, 183 Ind. 332
Case DateJune 16, 1915
CourtSupreme Court of Indiana

Original action instituted by the Attorney-General on information in the name of the State of Indiana against Eli H. Redman to remove him from the office of Judge of the Vigo Circuit Court.

Judgment of removal.

Richard M. Milburn, Attorney-General, Horace M. Kean, Leslie R Naftzger, Omer S. Jackson and Wilbur T. Gruber, for the State.

Roby & Salsbury and Slinkard & Vosloh, for defendant.


Cox, J.

This is an original action instituted by the Attorney-General by filing in this court an information in the name of the State alleging the conviction of the defendant of high crimes and corruption and asking judgment that he be removed from the office of judge of the Vigo Circuit Court, which court constitutes the 43d judicial circuit of this State, and that he be disfranchised and rendered ineligible to office.

In material substance the information alleges that defendant was a candidate and was voted for, at the general election in this State on November 3, 1914, for the office of judge of the circuit court for the term of six years; that on the face of the election returns defendant appeared to be elected and thereupon a commission for such office was issued to him by the Governor of the State; that defendant entered upon the duties of such office and still claims the right to exercise its functions; that on December 23, 1914, defendant with numerous other persons, was duly charged by indictment, in four counts, in the Federal District Court for the district of Indiana with a conspiracy to perpetrate many frauds in Vigo County, Indiana, to affect the general state election there held on November 3, 1914, and at which election a senator and representative in the Congress of the United States were to be voted for, and with having devised a scheme to defraud, and with having used the United States mails in aid thereof, in violation of §§ 19, 37 and 215 of the Federal Penal Code; that defendant was put to trial before a jury in the said district court and was duly found guilty as charged in all the counts of the indictments; that April 12, 1915, the district court rendered judgment on the verdict against defendant on the first count that he be imprisoned in the United States penitentiary at Leavenworth, Kansas, for the term of five years and fined in the sum of $ 1,000, and on each of the second and third counts imprisonment for two years and on the fourth count imprisonment for five years, the sentence and judgment on all counts to run concurrently.

Upon the filing of the information, the court did, on May 4, 1915, fix May 14, 1915, for a hearing thereon and for defendant to show cause why he should not be removed, and at that time ordered the sheriff of this court forthwith to serve the defendant with notice thereof by leaving a certified copy of the information and the order of the court fixing hearing thereon at the last usual place of residence of defendant in Vigo County, which service was duly made on May 4, 1915, by the sheriff, and due return thereof was made. Defendant, at the time set for hearing, appeared by counsel and moved to quash the summons and set aside the return which motion was overruled.

This action was followed by defendant's challenging the information by demurrer on the grounds that this court had no jurisdiction of the person of the defendant and no jurisdiction of the subject-matter of the action, and that the facts averred are not sufficient to constitute a cause of action against the defendant. This demurrer was overruled by the court. Thereupon the defendant filed a verified answer in abatement averring that after his conviction, defendant had prayed a writ of error to the United States Circuit Court of Appeals for the Seventh Circuit which writ was allowed and that the cause was pending in said court of appeals undetermined. To this plea, the State demurred for want of facts which demurrer was sustained. Defendant then joined issue by an answer of general denial and over his objections, a duly authenticated copy of the proceedings of the district court and its judgment of conviction of defendant was admitted in evidence in discharge of the burden of the issue resting on the State.

There is no dispute over the facts. That defendant was declared elected to the office of judge of the Vigo Circuit Court at the November election, 1914, that he was commissioned and entered upon the discharge of the duties of the office, that he was indicted by the Federal grand jury for conspiring with others to commit gross frauds averred to be in violation of certain Federal penal laws in the matter of that election which also involved the election of a senator from this State and a representative for the district in which Vigo County was, in the Congress of United States, that he was tried and convicted by a jury on the indictment and sentenced by the court and that he is now by commitment in execution of the judgment of the court in the Federal prison at Leavenworth, are all conceded facts.

The objections which counsel for defendant have interposed to the granting by this court of the prayer of the State are questions of law wholly. Section 12 of Article 7 of our State Constitution provides as follows: "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". Section 19 of the act of 1897 (Acts 1897 p. 278, § 9646 Burns 1914), provides: "In case any judge or prosecuting attorney shall have been convicted of corruption or other high crime, it shall be the duty of the attorney-general to bring proceedings in the supreme court on information, in the name of the state, for the removal from office of such judge or prosecuting attorney, and in case of judgment against the defendant on said information such judgment shall be that the defendant shall be removed from office and be disfranchised and rendered ineligible to office during the lifetime of such defendant, or such shorter period as such court may deem expedient; and upon the rendition of such judgment the governor shall appoint a successor to fill the vacancy in office created thereby". Upon these provisions the information of the State and its prayer for the judgment of this court rest.

The main questions which counsel for defendant have raised in the progress of this proceeding and urged against his removal, and to which all other questions are collateral, may be thus stated in the order in which they have been raised: (1) It is contended that, as no provision is found in either the constitutional or the statutory provisions above set out for notice to the defendant, "due process of law" is not provided and that this court can give no effective notice and therefore can acquire no jurisdiction of the person of the defendant nor of this action against him. (2) That defendant can not be removed by this court under the above constitutional authorization except on conviction of high crime or corruption in a court of this State. (3) That defendant can not be removed by this court under this constitutional provision except on conviction of high crime or corruption committed by him as an official or at least during his term of office. (4) That defendant can not be removed by this court by the authority given by this constitutional provision until the judgment of conviction has become final by waiving remedies by appeal or writ of error or by fruitlessly exhausting them.

The first contention of counsel for the defendant is without material support from any point of view. Section 12 of Art. 7 of the Constitution above set out provides for the removal of a judge by this court for a cause stated and exhibited in this court by information in the name of the State, or in such other manner as may be prescribed by law. And it is therefore manifest that as to removal by this court, the constitutional provision is self-executing while as to removal in any "other manner" it is not, but requires action by the legislature to supply the "other manner". We are dealing alone with the authority delegated to and duty imposed upon this court in the subject-matter of a delinquent judge who has been loaded with the disqualification which the people in their sovereign capacity have declared shall authorize this court to remove him and cleanse their court and keep it open. A constitutional provision which is self-executing is one which supplies the rule or means by which a duty enjoined may be performed. Cooley Const. Lim. (7th ed.) 121; 8 Cyc. 752 4a; 6 R. C. L. 57-59; Throop, Public Officers § 342. The provision in the particular in which it is involved in this case speaks to this court and not to the legislature. It gives to this court authority and imposes upon it a duty in a...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT