State Ex Rel. Gannon Etc. v. Porter Cir. Ct.
This text of 159 N.E.2d 713 (State Ex Rel. Gannon Etc. v. Porter Cir. Ct.) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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This is an action for writ of mandate. The essential facts are as follows:
One Robert Lee Johnson was charged with murder in the St. Joseph Circuit Court in 1953. He filed a motion for change of venue from that county and pursuant thereto the venue was changed to the La Porte Circuit Court. Thereafter on motion of the defendant, and over the objection of the state, the La Porte Circuit Court granted a second change of venue [639]*639from the county. This court in the case of State ex rel. Fox, etc. v. La Porte Cir. Ct. et al. (1956), 236 Ind. 69, 138 N. E. 2d 875, mandated the respondents to expunge the record of such second change of venue for the reason that the court was without authority to grant such second change.
Thereafter the cause was submitted to a jury for trial in the La Porte Circuit Court, however because of “reprehensible” publicity given the case, as reported in the case of LaGrange etc. v. State (1958), 238 Ind. 689, 153 N. E. 2d 593, on request of both the defendant and the state submission was withdrawn from the jury.
Thereafter, the defendant filed a verified motion for change of venue from the county which stated among other things “that because of the discussion of this defendant and his defense it would be impossible for this defendant to have this case heard by a jury in La Porte County.”
To this motion Raymond M. Fox, Jr., the prosecuting attorney of the 32nd Judicial Circuit (La Porte County) and Patrick Brennan, the prosecuting attorney of the 60th Judicial Circuit (St. Joseph County), filed an answer to said motion admitting all its material allegations. The State of Indiana in said answer further expressly consented to the requested transfer and affirmatively stated “that it would be impossible to obtain a fair and impartial trial of the issues involved in this action in La Porte County, Indiana because of the great publicity attendant to this cause as alleged in defendant’s verified application.”
Thereupon, relator herein, as special judge in said cause entered an order changing the venue of said cause from the La Porte Circuit Court to the Porter [640]*640Circuit Court, and thereupon said cause was transferred to the Porter Circuit Court.
Thereafter, this respondent, as judge of the Porter Circuit Court, upon his own motion entered a finding that the order of the La Porte Circuit Court granting a change of venue from La Porte Circuit Court to Porter Circuit Court in said cause was void and conferred no jurisdiction of the subject matter of said action or the person of said defendant upon Porter Circuit Court. The respondent thereupon entered an order remanding said cause from Porter Circuit to La Porte Circuit Court.
In support of his action respondent relies upon the case of State ex rel. Fox, supra. We therefore examine the law and the facts in that case to ascertain its decisive effect upon the facts in the case at bar. We find that the facts with which we are presently concerned differ in two essentials from those present in the former instance.
First: There is a difference in the substantive facts stated in the affidavits for change of venue. In the former case the affidavit merely alleged the statutory grounds in general terms that the defendant could not have a fair trial “on account of excitement and local prejudice” of the citizens of the county. Here, however, the affidavit asserted that on the basis of specifically stated facts “it would be impossible for the defendant to have this case heard by a jury in La Porte County and have the case decided solely upon the evidence presented in court.” (Our italics.) The statement is tantamount to an allegation that it would be impossible to obtain an impartial jury to try the case in La Porte County.
This distinction is significant for the reason that here we are concerned with a second change of venue [641]*641not authorized by statute1 nor is it authorized by the Constitution2 except in so far as it guarantees to the accused “a public trial, by an impartial jury in the county in which the offense shall have been committed.” (Our italics.)
The decree granting the change in the former instance was unauthorized since it did not rest upon any statutory authority, since the statute which authorized a change on account of “excitement and local prejudice” expressly limited the right to such change to “only one change from the county.”
Neither did the change rest upon constitutional authority. The constitutional provision only guarantees “a public trial by an impartial jury in the county in which the offense shall have been committed.” (Our italics.) Therefore in the former instance the change was not sustained upon constitutional authority since there was no specific allegation, agreement or finding of fact that an impartial jury could not be obtained without such change of venue.
Second: In this case, as contrasted with the prior decision in the Fox case, supra, the state has concurred in the fact that under the specifically stated circumstances it would be impossible to obtain an impartial jury to try the case in the county of present venue.
This distinction is significant, for although under the Constitution (Art. 1, §13, supra) the accused is entitled to a trial by an “impartial jury,” nevertheless the public policy regarding the venue of the action is unequivocally expressed. Except as otherwise authorized venue under the Constitution must be in the [642]*642county where the offense was committed (except that by statute one change from the county is permitted “on account of excitement and local prejudice” which might interfere with the trial.)
The place of trial, like the right to trial by jury itself3 is a matter in which both the accused and the state are interested. It is of concern to both that the trial be had with the least possible delay and with the greatest possible advantage to both in the procuring of witnesses, and that the jury be permitted to view the situs of the offense, if desired.
For these reasons, where as in the former instance the state objected to a second change, it must be made to appear after attempt has actually been made to secure an impartial jury that such jury could not be obtained in the county of present venue. In the former case no attempt had been. made to procure an impartial jury, nor was this deficiency supplied by a stipulation or agreement by the state that such facts existed. Therefore, the granting of the second change was contrary to law. However, in the instant case both the accused and the state in effect stipulate to facts which require a change in order that the accused be tried by an impartial jury as is his constitutional right.
When all the parties, including the State, agree and the court finds that it will be impossible to procure an impartial jury to fairly try a cause in the county of present venue, and when under such circumstances a verdict of guilty, if returned, could not be sustained on appeal because of the admission of error on the part of the state, it would be nonsensical for the law to say to the parties and the [643]*643court, nevertheless you cannot transfer the trial to another county to avoid such error.
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Cite This Page — Counsel Stack
159 N.E.2d 713, 239 Ind. 637, 1959 Ind. LEXIS 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-gannon-etc-v-porter-cir-ct-ind-1959.