Opinion
No. 26,444.
Filed January 15, 1936.
1. CRIMINAL LAW — Appeal — Review — Presumptions — Jurisdiction of Special Judge. — Where the record disclosed that the special judge trying the cause on a retrial was not the same special judge who had formerly tried the case and granted a new trial, and was silent as to the cause for change of judge, it was presumed that the first special judge was unable to attend and preside and that it was necessary to appoint another special judge. p. 430.
2. CRIMINAL LAW — Appeal — Reservation of Grounds in Lower Court — Objection to Special Judge. — Where a special judge granted a new trial and the regular judge appointed another special judge to preside at the second trial, defendant waived the question of the second judge's jurisdiction by failure to object at the time of the trial, and could not raise the question after judgment by motion in arrest. p. 430.
From Elkhart Circuit Court; James Story Drake, Special Judge.
Walter Wolfe was convicted of manslaughter, and he appealed. Affirmed.
Guy W. Dausman, for appellant.
Philip Lutz, Jr., Attorney-General, and Ralph E. Hanna, Assistant Attorney-General, for appellee.
In 1918 appellant was charged with murder, entered a plea of guilty, and was sentenced to life imprisonment. In May, 1933, he filed a petition for a writ of error coram nobis. The regular judge of the court disqualified himself upon the ground that he had been the deputy prosecuting attorney in charge of the prosecution of the original cause, and appointed Hon. James L. Harmon as special judge. There was a trial before the special judge, the judgment was set aside, and a new trial ordered. Thereafter the regular judge of the court made another entry, reciting his disqualification, and appointed Hon. Thomas A. Davis as special judge to try the cause. There was a trial, and appellant was found guilty of manslaughter. The record does not show why the first special judge appointed did not continue and try the case, nor does it appear that he was or was not disqualified or in some manner incapacitated. Appellant made no objection to the second special judge trying the case until after the trial and verdict, at which time he sought to raise the question of his qualification by a motion in arrest of judgment.
Appellant assigns as error here the overruling of his motion in arrest of judgment, and that the special judge who tried the case never had jurisdiction of his person.
The record being silent, we must presume that the first special judge appointed was unable to attend and preside, and that it was necessary to appoint another special judge. Fassinow v. 1. State (1883), 89 Ind. 235.
"By not objecting at the time of the trial, he waived all right to question the jurisdiction of the judge appointed by the regular judge to preside at that trial." Skelton v. 2. State (1898), 149 Ind. 641, 643, 49 N.E. 901, and cases there cited; Gears v. State (1932), 203 Ind. 400, 180 N.E. 592.
Judgment affirmed.