Wheeler v. The State

Decision Date14 May 1902
Docket Number19,775
Citation63 N.E. 975,158 Ind. 687
PartiesWheeler v. The State
CourtIndiana Supreme Court

Rehearing Denied June 4, 1902.

From Warrick Circuit Court; F. H. Hatfield, Special Judge.

Willis B. Wheeler was convicted of murder, and he appeals.


T. W Lindsey and Roscoe Kiper, for appellant.

W. L Taylor, Attorney-General, Merrill Moores and C. C. Hadley, for State.


Dowling, J.

September 7, 1901, the appellant killed Elias Burns, his son-in-law, at the county of Warrick, in this State. He was arrested immediately after the homicide, and four days later an indictment for murder in the first degree was returned against him. September 13, 1901, he was arraigned, and entered a plea of not guilty. The cause was then set down for trial on September 27th. On September 24th he made an application for a continuance, the motion was sustained, and the trial was postponed until October 4, 1901, at which time it was ordered that an adjourned term of the court be held. At the request of the appellant a special venire for forty jurors was issued. October 4th the appellant, upon affidavit, demanded a change of judge; his motion was granted, and Mr. Frank H. Hatfield, a member of the Warrick county bar, was appointed a special judge to try the cause. The appellant thereupon filed a plea of insanity, to which a reply in denial was filed by the State. A motion for a continuance was made by appellant, and was overruled. Appellant again asked that the trial be delayed, and filed additional reasons for its postponement. The application was denied. The cause was then submitted to a jury for trial, and on October 15, 1901, a verdict of guilty of murder in the first degree, with the death penalty, was returned. The defendant appeals.

The errors assigned and not expressly waived by appellant are as follows: "The court erred in overruling appellant's objections to going to trial. The court erred in overruling appellant's motion to extend the time for arguing the motion for a new trial. The court erred in overruling appellant's motion for a writ of coram nobis. The court erred in overruling appellant's motion for a new trial."

The grounds upon which appellant objected to the trial of his cause at the adjourned term of the Warrick Circuit Court were that said Warrick county was one of the counties embraced in the second judicial circuit, the other counties being Spencer and Perry; that before the trial could be finished at such adjourned term, the regular term of the Spencer Circuit Court would begin; and that the judge of the Warrick Circuit Court had no authority at an adjourned term to appoint a special judge to hold court for him.

As the business of the Warrick Circuit Court remained undisposed of at the close of its September term, 1901, the judge was expressly authorized by statute to adjourn the court to any other time in vacation, and at such adjourned term to proceed with the business of the court as a part of the regular term of said court at which the adjournment was ordered. § 1443 Burns 1901. Trials by other judges at such adjourned terms, where changes of venue have been taken from the regular judge, are provided for in the same section. Where an adjourned term is held in one county of a circuit composed of more than one county, it might, and probably would, sometimes occur that a trial would extend beyond the day fixed by law for the beginning of the term in another county of the same circuit. Even in the absence of a statute regulating the proceedings under such circumstances, we do not think that the adjourned term would be abruptly terminated by the fact that the time fixed by law for the commencement of the regular term in such other county had arrived. If this result followed, the court might be compelled to discharge a jury in a criminal cause on trial at such interrupted adjourned term without the consent of the defendant, and, upon a second trial, possibly he might avail himself of the defense of once in jeopardy. It can not be supposed that the legislature intended the statutes fixing the terms of the courts in a circuit containing more than one county, and providing for adjourned terms whenever the business of any court in the circuit required them, to have this effect. While two regular terms of courts in different counties in the same circuit may not, perhaps, be held concurrently, we can perceive no good reason why an adjourned term of the circuit court in one county, at which a special judge presides, may not be held and lawfully continued after the commencement of a regular term in another county of the same circuit. Batten v. State, 80 Ind. 394; Smurr v. State, 105 Ind. 125, 4 N.E. 445.

In Batten v. State, supra, it is said by Elliott, C. J.: "It is true that there cannot be two courts in one circuit in session at the same time, in regular term." This, we think, is as far as the restriction ought to be carried, and nothing in the cases of Smurr v. State, supra; Cain v. Goda, 84 Ind. 209, or Batten v. State, supra, conflicts with this view. Whenever a trial is begun and in progress at the time when, by law, the term of the court would expire, the statute extends the term until the close of the trial. § 1402 Burns 1901. Counsel for appellant seem to have overlooked § 1445 Burns 1901, which declares that if any adjourned term of court, presided over by a judge appointed for that purpose, be extended so as to include the time set apart for the court in any other county in that circuit, the resident (regular) judge may proceed to hold the court in such other county while such adjourned term is being held. This section renders it entirely plain that an adjourned term in one county of a circuit may continue after the commencement of the time fixed for the regular term in another county in the same circuit. The authority of the regular judge, during an adjourned term, to appoint a special judge is as clearly conferred by the statute as is his right to perform any other official duty during such adjourned term. The adjourned term is made a part of the regular term, and anything a judge might do at a regular term he may do at an adjourned term. § 1443 Burns 1901; Smith v. Smith, 17 Ind. 75; Sutherlin v. State, 150 Ind. 154, 49 N.E. 947.

The next error assigned is that the court refused to extend the time for arguing appellant's motion for a new trial. This subject was wholly within the discretion of the court, and it had the right to fix the time, space, or limit of the argument, and when it would hear it. In some cases it has been held that the court may decline to hear arguments upon motions in arrest, or for a new trial. Howel v. Commonwealth, 46 Va. 664, 5 Gratt. 664; Commonwealth v. Porter, 10 Metc. (Mass.) 263; Long v. State, 12 Ga. 293. And the argument to the jury in a criminal cause may be confined within reasonable limits, and such regulation will not constitute reversible error unless manifestly prejudicial to the rights of the defendant. 2 Cyc. 701, 704.

The only argument expressly recognized by the statute is the argument to the jury. It is largely in the discretion of the court whether it will hear arguments on motions for a new trial, or upon questions of law addressed to itself. The sickness of one of the attorneys for the appellant did not constitute a sufficient reason for the postponement of the argument, and we find in this ruling of the court no abuse of the discretion with which it was invested.

3. On the 22d day of October the appellant petitioned the trial court for a writ of error coram nobis, and the refusal of the court to award the writ is the third error discussed in the brief of counsel for appellant. The grounds of the application were the existence of excitement and prejudice against the appellant in Warrick county, occasioned by the homicide, and his failure to ask for a change of venue from that county because of his fear of mob violence in case he did so, although he believed that he could not obtain a fair and impartial trial in said county on account of the feeling against him. The nature of the writ coram nobis, and the circumstances under which a proceeding of that character may be maintained, are stated with great fullness of learning by Elliott, J., in Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29. It was there held that a proceeding of this nature may be maintained in this State, and that it is the appropriate remedy when it is necessary to bring some new fact before the court which can not be presented in any of the methods provided by statute. A defendant who enters a plea of guilty upon a necessity produced by a well-grounded fear and imminent danger of mob violence may, according to the authority of that case, avoid the plea by a proceeding in the nature of a writ of coram nobis. In Sander's case it was clear that the plea of guilty was extorted from him "by a well-grounded fear and imminence of mob violence." The danger was so apparent and pressing that he dared not ask for any delay of the trial, and was compelled to withdraw his plea of "not guilty," and enter a plea of "guilty."

In the case before us the situation was wholly different. In our statement of the facts we set out with some particularity the various steps taken on behalf of the appellant, and the dates of the different motions and proceedings. Arraigned upon the indictment September 13th, he pleaded not guilty, and his trial was set for the 27th of the month. He applied for a postponement of the trial, and it was delayed until October 4th. He demanded a special venire for jurors, and the writ was issued. He challenged the fitness of the regular judge of the court to preside upon his trial, and another judge was appointed. Ten or eleven days were occupied in the trial. Two men...

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