Woodsmall v. State

• Decision Date: 14 May 1914
• Docket Number: No. 22,546.,22,546.
• Citation: 181 Ind. 613,105 N.E. 155
• Parties: WOODSMALL v. STATE.
• Court: Indiana Supreme Court

181 Ind. 613

105 N.E. 155

WOODSMALL

v.STATE.

No. 22,546.

Supreme Court of Indiana.

May 14, 1914.

Appeal from Circuit Court, Sullivan County.

Samuel Woodsmall was convicted of conspiracy to obtain money by false pretense, and he appeals. Reversed, with instructions to grant a new trial.

For dissenting opinion, see 105 N.E. 899.

See, also, 102 N. E. 130.

Charles D. Hunt, Gilbert W. Gambill, and Walter F. Wood, all of Sullivan, for appellant. Thomas M. Honan, Atty. Gen., and Thomas H. Branaman, Asst. Atty. Gen., for the State.

COX, J.

Appellant, together with two others, was prosecuted by affidavit for conspiracy to commit the felony of obtaining money by false pretense. He was tried, found guilty, and sentenced to serve an indeterminate term of from one to 14 years imprisonment. From that judgment he appeals. This is the second conviction of appellant of the offense charged and his second appeal. Woodsmall v. State (1913) 102 N. E. 130. The indictment in the first trial failed to aver the pretense alleged was false. Appellant filed a timely motion in arrest of judgment, on the ground that the facts stated in the indictment did not constitute a public offense. The trial court overruled the motion, and on this ruling the cause was reversed, on the ground that the omission of the averment of the falsity of the pretense rendered the indictment insufficient.

The first trial of appellant was conducted before a special judge, and when the action of this court was certified back to the lower court this special judge assumed jurisdiction of the case, obeyed the mandate of this court by sustaining appellant's motion in arrest of judgment, and, upon the request of the prosecuting attorney, ordered appellant held for the presentation of a proper charge against him. The special judge retained jurisdiction and presided in the case throughout all of the subsequent proceedings leading up to and including the rendition of the judgment now appealed from. In due time the affidavit, on which the judgment now appealed from rests, was filed, and contained allegations intended to cure the defect found by this court in the indictment. Appellant filed written objections to the special judge retaining jurisdiction over the case in all of the proceedings subsequent to sustaining the motion in arrest as ordered by this court, and to his presiding at the second trial. He also filed an affidavit for a change of judge on account of the alleged bias and prejudice of the special judge against him. Following this, he filed a motion to quash the affidavit. One of the defendants named in the affidavit demanded a separate trial and the prosecuting attorney elected to try appellant first and separately, which the court permitted, over appellant's objection. In all of these matters the action of the court was adverse to appellant, and, it is contended, was in each particular reversible error.

We find no difficulty in denying a reversal of the cause on any of these alleged errors, except the action of the court in denying appellant's application for a change of judge.

[1] That provision of the Criminal Code which authorizes the appointment of a special judge for criminal trials provides that: “He shall have power to hear and determine such cause until the same is finally disposed of.” Section 2075, Burns 1914.

Where a special judge is called in a case, it, with all of its incidents from the beginning to the end, passes under the exclusive control and jurisdiction of the special judge, subject to revert to the control of the regular judge in the event that the special judge becomes incapacitated or refuses to act. Perkins v. Hayward (1890) 124 Ind. 445, 24 N. E. 1033;Mayer v. Haggerty (1894) 138 Ind. 628, 38 N. E. 42; 11 Encyc. of Pl. & Pr. p. 794; 23 Cyc. 611.

The provisions of section 2075, supra, must be taken to mean until the case is finally disposed of according to law. This court held on the former appeal that this had not been done, and the cause was sent back for further proceedings. Counsel for appellant concede that the special judge was still rightfully acting in the cause when he sustained the motion in arrest in obedience to the mandate of this court; but they contend that thereafter, when the affidavit was filed which supplied what this court had held was necessary to make a good charge of the offense for which appellant was being prosecuted, a new cause was instituted. We cannot concede appellant's position. In so far as the provision of section 2075, supra, is concerned, it was the same cause properly charged. Barrett v. State (1911) 175 Ind. 112, 93 N. E. 543. The Criminal Code provides that when judgment is arrested in any case, and there is reasonable ground to believe that the defendant can be convicted if properly charged, the court may order him recommitted or admitted to bail anew, to answer a new indictment or affidavit. Section 2160, Burns 1914.

It has been held in a state with a provision for a special judge similar to that in section 2075, supra, that the special judge retains jurisdiction after a reversal by the Supreme Court. State v. Hayes (1885) 88 Mo. 344;State v. Sneed (1887) 91 Mo. 552, 4 S. W. 411; 23 Cyc. 615.

Counsel for appellant contend that the affidavit upon which he was convicted is fatally defective, because it does not show that the defendants jointly named conspired to do the acts charged as constituting the offense of false pretense. While the connection is not made with nice exactness by the allegations, we think it fairly appears from the language used.

[2] Appellant's claim of error in permitting his trial separately from those jointly charged with him is urged on the grounds that the prosecuting attorney informed the court that one of appellant's codefendants desired a separate trial, and that the separate trial of appellant was awarded on the demand of the prosecutor, and not a defendant. From this it is urged that, as crimes are wholly statutory in this state, and that the statute (section 2135, Burns 1914) only provides for separate trials at the instance of a defendant, and not the state, the court erred in granting a separate trial of appellant over his objection. In 1852 the General Assembly declared certain principles of the common law to be a part of the law governing this state. 1 R. S. 1852, p. 351, § 1; section 236, Burns 1914. By section 2 of the same act (section 237, Burns 1914) an exception to this general adoption of the common law was made by the declaration that “crimes and misdemeanors shall be defined, and punishment therefor fixed by statutes of this state and not otherwise.” This exception has continued in force uninterruptedly, and by reason of it no common-law crimes, punishable as such, exist in the state, and cannot without the repeal of section 237, supra. Sopher v. State (1907) 169 Ind. 177, 81 N. E. 913, 14 L. R. A. (N. S.) 172, 14 Ann. Cas. 27. But it has never been considered that the declaration that all crimes and misdemeanors shall be defined and their punishment fixed by statute excluded all details of common-law procedure in the trial and prevented a resort to common-law practice in matters not covered by statute. Sanders v. State (1882) 85 Ind. 318, 44 Am. Rep. 29;Shular v. State (1886) 105 Ind. 289, 4 N. E. 870, 55 Am. Rep. 211.

In the case last cited it was said: “It is a mistake to suppose that one jointly indicted with another has a right to a joint trial; on the contrary, at common law the prosecution might demand separate trials, and, under our statute any defendant may demand that a separate trial be awarded him. The court, when justice requires it, may suggest in express words the propriety of separate trials.” See, also, Jones v. State (1899) 152 Ind. 318, 53 N. E. 222, 12 Cyc. 506.

[3] With great reluctance we are forced to the conclusion that the denial of appellant's application for a change of venue from the special judge was error for which a reversal of the cause must be ordered. It was in proper form, and, as it was made in June, and the cause was thereafter set for trial at the ensuing September term, no reasonable rule of the trial court could have justified the denial of the change on the ground that the application was not timely made. The rule has been unbroken that on a proper application the judge to whom it is addressed has no discretion, and that a change of judge must be granted....