Watts v. State

• Decision Date: 08 December 1950
• Docket Number: No. 28695,28695
• Citation: 229 Ind. 80,95 N.E.2d 570
• Parties: WATTS v. STATE.
• Court: Indiana Supreme Court

Page 570

95 N.E.2d 570

229 Ind. 80

WATTS v. STATE.

No. 28695.

Supreme Court of Indiana.

Dec. 8, 1950.

William H. Dobbins, Lew G. Sharpnack, Columbus, Frank Hamilton, Greensburg, for appellant.

J. Emmett McManamon, Atty. Gen., Frank E. Coughlin, George W. Hand, Jr., Norman J. Beatty, Deputies Atty. Gen., George S. Dailey, Pros. Atty., Samuel E. Garrison, Deputy Pros. Atty., Indianapolis, for appellee.

JASPER, Judge.

Appellant was tried upon an indictment returned by the grand jury of Shelby County in two counts. The first charged murder in the first degree of one Mary Lois Burney by shooting, and the second charged the same murder while attempting to rape Mary Lois Burney. A plea of not guilty was entered. Trial was had before a jury, a verdict of guilty was returned upon each count of the indictment, and judgment and sentence that appellant be electrocuted followed.

Because of the questions raised, it is necessary to set out the history of this case.

Appellant was originally indicted in Marion County, charged with first-degree murder in two counts. A change of venue was taken and the cause was sent to Shelby County, where it was tried and a verdict of guilty returned and sentence of death imposed. The case was then appealed to this court and affirmed. Watts v. State, 1949 226 Ind. 655, 82 N.E.2d 846. The judgment of this court was reviewed by the Supreme Court of the United States, and was reversed. Watts v. State, 1949, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801. Pursuant to mandate, this court reversed the judgment of the Shelby Circuit Court, with instructions to sustain the motion for a new trial, and for further action agreeable with the opinion of the Supreme Court of the United States.

On October 6, 1949, appellant filed a plea in abatement, which was sustained. On October 21, 1949, appellant, appearing in person before the court, was called upon to elect whether to be further prosecuted in Shelby County or in Marion County, and elected to have the case instituted in Shelby County. On October 25, 1949, the Shelby County Grand Jury returned the indictment in open court. On October 26, 1949, a bench warrant was issued and delivered to the Sheriff of Shelby County, and was served upon appellant. A motion to quash each count of the indictment was later filed and overruled. On December 20, 1949, appellant filed a written motion for an order to transfer said cause and all papers to Marion County, which motion was overruled. On the 23rd day of December, 1949, appellant filed his verified application for a change of venue from Shelby County, which was granted, and the cause was venued to Bartholomew County, where this case was tried.

Appellant assigns three grounds as error:

(1) That the court erred in overruling appellant's motion for order to transfer this cause and all papers to Marion County, Indiana.

(2) That the court erred in overruling appellant's motion to quash the indictment and each count thereof separately and severally.

(3) That the court erred in overruling appellant's motion for a new trial in said cause.

Appellant's first and second assignments of error can be discussed together, since they involve the same question.

Under these two assignments of error, appellant contends that appellee failed to prove the venue, as required by § 9-1308, Burns' 1942 Replacement. We therefore set out the three sections of the statute which are pertinent.

Section 9-1308, Burns' 1942 Replacement: 'If it shall be necessary to institute a new prosecution for the same offense after such change of venue has been taken, the defendant in such case shall elect, when so required by the court, whether such further prosecution shall be instituted in the court to which or in that from which such change was taken; and thereupon, he may be recognized to appear in the court which he elects, or be committed for want of bail, detained in custody or remanded to the county from which the change was taken, as the case may require.'

Section 9-1310, Burns' 1942 Replacement: 'If, on such new prosecution, such defendant be prosecuted for such offense in the court to which such change of venue was taken, such new indictment may be found or affidavit filed and prosecuted to final execution therein as if such offense had been committed in the county of such court; but the indictment or affidavit in such case shall state how the proceeding came into the court where the party elects to be tried, and that he has elected to be tried in such county.'

Section 9-1311, Burns' 1942 Replacement: 'If such defendant refuses to elect in which county such new prosecution may be instituted, he shall be recognized to appear before or be remanded to the proper court of the county from which the change of venue was taken, in like manner as if he had elected to be proceeded against in such county.'

The contention of appellant that the State failed to prove that Robert Austin Watts took a change of venue from Marion County is not well taken. Crimes in Indiana are statutory (see § 9-2401, Burns' 1942 Replacement), as is our criminal procedure. The State's Exhibits numbered 5 to 7, inclusive, being the indictment and order book entries from the records in Marion County, were admitted and read in evidence. They showed the original indictment and the steps taken thereafter, through and including the filing of the change of venue, the granting of the change, and the transfer of the cause to Shelby County. The caption of the cause and the number assigned thereto were set out in the exhibits. In this state, a change of venue from the county can only be taken by the defendant. See § 9-1301, Burns' 1942 Replacement. The proof therefore that the change of venue from Marion County to Shelby County was taken under our statutes is in and of itself sufficient to show that appellant took the change of venue. No more direct evidence is required for the proof of venue than is required for the proof of any of the other matters required for conviction, and may be established by inference. Davis v. State, 1925, 196 Ind. 213, 147 N.E. 766. The setting out of the name of 'Robert Austin Watts' in the indictment as taking the change of venue and that it was granted to him was mere surplusage and need not be proved. Ewbank's Ind. Crim. Law, 2d Ed., § 345, p. 216; Howard v. State, 1921, 191 Ind. 232, 131 N.E. 403.

The evidence further showed by State's Exhibits numbered 17 to 19, inclusive, these being the order book entries in Shelby County, the steps taken in Shelby County, including the abating of the action and the ordering of Robert Austin Watts to elect in which county the new action should be instituted, and that Robert Austin Watts personally elected to have the new action instituted in Shelby County. The State therefore did prove the necessary averments to show venue in Bartholomew County. It was not necessary to show that appellant was represented by attorneys. It was only necessary that appellant personally made the election.

The next contention, that the constitutional rights of appellant were violated under § 1 of the Fourteenth Amendment of the Constitution of the United States and under Article 1, § 13, of the Constitution of Indiana, is not well taken. Appellant contends that he was entitled to have the cause remanded to the county in which the crime was committed. However, by taking the change of venue from Marion County, he waived his constitutional right to be tried in the county in which the offense was committed. This right is personal, and may be waived, and was personally waived. 14 Am.Jur., Criminal Law, § 233, p. 930. And, as above stated, our criminal procedure is statutory, and the right to indictment under our grand jury system may be modified or abolished by the General Assembly, under Article 7, § 17, of the Constitution of Indiana. Sections 9-1308, 9-1310, and 9-1311, Burns' 1942 Replacement, gave to appellant the right to elect in which county he wished to have the new action instituted, and, as provided by § 9-1311, if he refused to elect, the cause would be remanded to the county in which the offense was committed. These sections, in fact, reserved to appellant the right to be tried in the county to which the change of venue had been taken. State ex rel. Schaaf v. Rose, 1943, 222 Ind. 96, 51 N.E.2d 856. There was no violation of the constitutional rights of appellant under the above three sections of our statute. The fact that the indictment set out the name of Robert Austin Watts as having taken the change of venue from the county and having filed the plea in abatement is contended to have impaired his right to a fair and impartial trial. This is no evidence whatsoever of the guilt of the accused, and the jury was instructed by the court, in Instruction No. 9, that: 'The indictment preferring the charge against the defendant in this case is merely an accusation or formal charge against him and is no evidence whatever of his guilt.'

It did not impair his right to a fair and impartial trial.

Appellant further contends that in the case of State ex rel. Meloy v. Barger, 1949, 227 Ind. 678, 687, 88 N.E.2d 392, 396, a new law was created and a substantial right of appellant was taken away, and, further, that the decision was ex post facto. This was an original action before this court to decide a jurisdictional question between the regular judge and a special judge. This court, in the original action, mandated the regular Judge of the Shelby Circuit Court 'to assume and exercise full jurisdiction and conduct all proceedings in Cause No. 4852, entitled 'State of Indiana v. Robert Austin Watts,' now pending in the Shelby Circuit Court, until said cause is finally disposed of, or until such time as a valid change shall be taken and perfected from said judge or from said Shelby County in said cause according to law.' The judgment of the court in this last-cited case did not create a new law and did not take any of the...