Opinion
No. 27,941.
Filed December 21, 1943.
1. CRIMINAL LAW — Venue — Change of Venue — Effect of Granting Change to One of Several Defendants. — The granting of a change of venue to one defendant in a criminal prosecution carries with it a change of venue as to all defendants. p. 99.
2. CRIMINAL LAW — Venue — Change of Venue — New Prosecution Necessary — Election as to Venue by One Defendant Insufficient to Work Severance. — Where a change of venue from Lake County to Newton County was granted to defendants accused of crime, and thereafter, upon a representation that a new prosecution was necessary, the judge of the Newton Circuit Court ordered the defendants to elect whether such prosecution should be in Newton or Lake County, and one defendant elected that it should be brought in Newton County but the other defendants refused to elect, such action was not sufficient to work a severance, and the venue of the entire case remained in the Newton Circuit Court, and hence the Lake Criminal Court was without jurisdiction to proceed in the new prosecution. p. 99.
3. CRIMINAL LAW — Venue — Change of Venue — Interpretation of Statutes. — Statutes relating to changes of venue should be interpreted in the light of guarantees attaching to defendants in criminal cases to fair and impartial trials as such guarantees are declared in the Indiana Constitution. p. 99.
Original action by the State of Indiana, on the relation of Mary Grace Wells Schaaf and others, for an order mandating George P. Rose, as Special Judge of the Lake County Criminal Court, and the Lake County Criminal Court, Crown Point, Indiana, to grant a change of venue, or in the alternative if such relief is not granted that the judge be mandated to grant a change of venue from the judge, and for further relief.
Order in accordance with opinion.
F.C. Crumpacker and Richard P. Tinkham, both of Hammond, and George E. Hershman, of Crown Point, for relators.
James A. Emmert, Attorney General, Frank Hamilton, First Assistant Attorney General, and Frank Coughlin, Deputy Attorney General, for respondents.
This is an original action by relators asking an order mandating the Special Judge of the Lake County Criminal Court to grant a change of venue from the county in cause number 20,000 pending in said court, entitled State of Indiana v. Mary Grace Wells Schaaf, Edward W. Schaaf, and Coleman Melvin, or, in the alternative, in the event such relief is not granted, asking that said judge be mandated to grant a change of venue from the judge. The complaint also asks for all further and proper relief in the premises. The Attorney General has appeared on behalf of respondents and the State of Indiana.
In the July Term, 1940, of the Criminal Court of Lake County an indictment was returned against relators and one Richard Melvin charging them with conspiracy to obtain money by false pretenses and to file false claims. On application of defendants in that case a change of venue was granted from Lake County to Newton County on the ground of bias and prejudice existing in the former county. The case continued to pend in Newton County until December 4, 1942, at which time, upon representation that a new prosecution was necessary, the Newton Circuit Court ordered relators and the said Richard Melvin to elect whether such new prosecution should be brought in Newton County or in Lake County. The relators contended that the procedure was illegal and refused to elect. However, the defendant, Richard Melvin, did elect that such new prosecution should be brought in Newton County. Thereupon, on order of the Newton Circuit Court, Richard Melvin furnished a recognizance bond to appear to the new prosecution in the Newton Circuit Court, which was subsequently filed and charged the same offense. Also, pursuant to order of the Newton Circuit Court, relators furnished separate recognizance bonds to appear to a new prosecution when filed in the Criminal Court of Lake County. In the January Term, 1943, of the Criminal Court of Lake County an affidavit was filed charging relators with the same offense that had been charged in the original indictment. The relators, by an appropriate motion, questioned the jurisdiction of the court, and contended that jurisdiction remained in the Newton Circuit Court. Relators also filed a motion and affidavit for a change of venue from the county in the new prosecution. This action prays for the relief asked upon the ground that the bias and prejudice of the citizens of Lake County, Indiana, against relators was adjudicated by the ruling granting the first change of venue from the county.
The proceedings had in the Newton Circuit Court, which resulted in the orders to relators and Richard Melvin to elect as to the county in which new prosecutions would be filed, were 1-3. taken under authority of § 9-1308, Burns' 1933, § 2229, Baldwin's 1934. This statute was intended to preserve to defendants in a criminal case the right to be tried in the county to which a change of venue had been granted. It is well established that in a criminal prosecution where several persons are defendants, the granting of an application for a change of venue to one defendant carries with it a change of venue to all defendants. We think the same rule should apply here. One defendant chose to fix the venue of the case in Newton County. The others refused to choose. This was not sufficient to work a severance. Venue of the entire case remained in the Newton Circuit Court. There is no more reason for a severance than in the granting of a separate application for a change of venue by one of several defendants. State ex rel. Flaherty and Nye v. Ermston, Special Judge (1935), 209 Ind. 117, 197 N.E. 908; State ex rel. Rose v. Worden, Special Judge (1939), 216 Ind. 83, 23 N.E.2d 264. In effect, the order of the Newton Circuit Court accomplished indirectly a change of venue back to a county where bias and prejudice against relators had already been found to exist. See Ex Parte Lancaster (1921), 206 Ala. 60, 89 So. 721, 18 A.L.R. 706. Sections of the statutes relating to changes of venue should, in our opinion, be interpreted in the light of guarantees attaching to defendants in criminal cases to fair and impartial trials as such guarantees are declared in the Constitution of Indiana. (See Section 13 of Article 1, Constitution of Indiana.)
Under the facts appearing in this record there was no severance of this cause of action at the time relators and Richard Melvin responded to the order of the Newton Circuit Court to elect. Upon the facts in this record, the Newton Circuit Court is the only court which has jurisdiction to entertain any new prosecution in this matter, and the Criminal Court of Lake County is without jurisdiction to proceed with the trial of relators upon the affidavit now pending in that court.
It is therefore ordered that the Criminal Court of Lake County be prohibited from taking any further proceedings in cause numbered 20,000, entitled State of Indiana v. Mary Grace Wells Schaaf, Edward W. Schaaf, and Coleman Melvin, except to order the record and papers in said cause certified to the Newton Circuit Court where it will be consolidated with the cause there pending against Richard Melvin, and it is so ordered.
NOTE. — Reported in 51 N.E.2d 856.