Weer v. State

Decision Date07 October 1941
Docket Number27462.
Citation36 N.E.2d 787,219 Ind. 217
PartiesWEER et al. v. STATE.
CourtIndiana Supreme Court

Appeal from Circuit Court, St. Joseph County; Aldo J simpson, judge.

Harry S. Taylor, George Farage, Wm. E. Voor, Al W. Johannes, and Nicholas Cholis, all of South Bend, for appellants.

George N. Beamer, Atty. Gen., Warren W. Martin and Glen L. Steckley Deputy Attys. Gen., and James E. Keating, Deputy Pros. Atty of South Bend, for appellee.

SHAKE Judge.

The appellants were convicted of conspiracy to commit the felony of grand larceny. The first alleged error relied upon relates to the drawing and impaneling of the grand jury that indicted the appellants. It was charged by way of separate pleas in abatement that the trial court ordered the names of 12 persons instead of 6 to be drawn for grand jury service; that the drawing was not public, but was done in a small wood and glass enclosure in the clerk's office used by him for private conferences; that the names of 12 prospective grand jurors were drawn and recorded, 9 of whom were subsequently summoned by the sheriff; and that the order book of the court did not otherwise disclose the names of the grand jurors who served.

This court recently held that the intervention of mere irregularities in drawing and organizing the grand jury which involved no charge of fraud or corruption and in no way prejudiced defendant's substantial rights, assuming, in the absence of anything appearing to the contrary, that the body as constituted was composed of persons duly examined and qualified and not subject to any statutory causes of challenge, is not available as a plea to abate an indictment. Anderson v. State, Ind.Sup.1941, 32 N.E.2d 705. A plea in abatement must anticipate and negative all matter which, if alleged as a defense, would defeat the plea, and, by the evidence supporting the plea, the pleader must sustain the burden of anticipating and negativing any matter which would be a defense. Deep Vein Coal Co. v. Dowdle, Ind.Sup.1941, 33 N.E.2d 981. There were no charges of fraud or corruption and the appellants' substantial rights are not shown to have been prejudiced by the drawing of the grand jurors' names in that part of the clerk's office usually reserved for his private use, or by the fact that more than 6 jurors were drawn and summoned. From all that is made to appear, the first 6 persons whose names were drawn and recorded may have constituted the grand jury, and, in the absence of any showing to the contrary, it must be presumed that this was true. Fenwick v. State, 1929, 200 Ind. 460, 164 N.E. 632.

Souerdike v. State, 1938, 214 Ind. 523, 15 N.E.2d 379, is authority for the statement that the names of persons drawn for jury service should be promptly made a matter of record, so that interested parties may have a timely opportunity to inquire into their qualifications. The names of the prospective grand jurors drawn in the instant case were so recorded, and the appellants could not have been harmed by the fact that 6 more were drawn and 3 more summoned than were required to serve.

The appellants each demanded a separate trial, which demands were refused, and they now assert that an automatic severance was effected by operation of law, and, also, that the trial court abused its discretion in forcing them to be tried together. The claim of a severance by operation of law is based upon the fact that after appellants' separate pleas in abatement were overruled, Weer sought and obtained a purported change of venue from the judge while Rose's motion for a new trial was pending. In State ex rel. Rose v. Worden, Special Judge, 1939, 216 Ind. 83, 23 N.E.2d 264, this court held that the special judge appointed on Rose's motion was without jurisdiction and ordered the case remanded to the regular judge. The granting of a change of venue to one of several defendants jointly charged does not of itself entitle any of them to a separate trial. State ex rel. Flaherty and Nye v. Ermston, Spec. J., 1935, 209 Ind. 117, 197 N.E. 908. It necessarily follows that an unauthorized attempt to appoint a special judge would not accomplish such a result.

Under the statute now in force it is provided that: 'When two (2) or more defendants are jointly charged with any offense, whether a felony or a misdemeanor, they shall be tried jointly, unless the court, in its discretion, on the motion of the prosecuting attorney, or of any defendant, or on its own motion, orders separate trials.' § 9-1804, Burns' 1933 Supp., § 2284, Baldwin's Supp. 1935.

Where a discretionary power is vested in a lower or inferior court, there must be a plain abuse of such power to the prejudice of the complaining party, in order to warrant the interference of this court on appeal. Neal v. State, 1938, 214 Ind. 328, 14 N.E.2d 590, 15 N.E.2d 950. It is sufficient to say that no such abuse of discretion is disclosed by the record before us.

The appellant Rose moved for his discharge pursuant to § 9-1403, Burns' 1933, § 2239, Baldwin's 1934, on the ground that he had been held under recognizance more than three terms, not including the term at which the recognizance was taken. It is apparent, however, that the delay was caused by the pleas in abatement referred to above; the premature effort of Weer to obtain a change of venue from the judge; and the resulting original action in this court. The state is not answerable for these delays, and the motion to be discharged was properly overruled. Sullivan v. State (Flick v. State), 1939, 215 Ind. 343, 19 N.E.2d 739.

In State ex rel. Rose v. Worden, Special Judge, supra, it was said (216 Ind. 89, 23 N.E.2d 267): 'While it might be that co-defendant Weer had the naked right to file his affidavit and motion for a change of venue at the time he filed the same, we are convinced that he had no right to a change until the motion for a new trial had been disposed of in the event such a motion had been filed, or until the time for the filing of such a motion had expired, or the filing of the same had been waived.'

It follows that from the time Weer's motion for a change of venue from the judge was filed the regular judge was without jurisdiction, other than to dispose of the motion of Rose for a new trial on the issues formed on his plea in abatement and to grant the change. However, before the change of venue was perfected the state filed a motion to...

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