State Ex Rel. Hale v. Marion County Municipal Court

127 N.E.2d 897, 234 Ind. 467, 1955 Ind. LEXIS 164

• Court: Indiana Supreme Court
• Decided: July 14, 1955
• Docket: 29,260
• Status: Published

Opinions

Achor, J.

A temporary writ of mandate was issued by this court on application of relator, which directed the respondent to grant relator’s application for change of judge in three separately filed criminal charges pending in that court and growing out of the same offense. The charges were public intoxication, reckless driving, and operating a motor vehicle while under the influence of intoxicating liquor, the latter being a second offense and therefore a felony (Acts 1939, ch. 48, §52, p. 289), (§47-2001 (b), Burns’ 1952 Repl.). The respondent sustained the motion and made the appropriate record for change of judge with respect to the first two charges which involved only misdemeanors, but made no such record with regard to the latter charge. Thereupon on application of relator, this court subsequently issued a temporary writ of prohibition restraining respondent from proceeding any further in the cause unless such action was in compliance with the writ of mandate previously issued. It is upon these issues that this action is prosecuted.

The fundamental question presented is this: Is relator entitled to a change of venue from respondent as to the criminal charge of operating a motor vehicle while under the influence of intoxicating liquor, it being a second offense and, therefore, a felony?

It is not disputed that the jurisdiction of the Marion County Municipal Court, Room 3, is limited to the trial and conviction of misdemeanors only and to preliminary hearings for the purpose of binding over to the criminal court persons charged with felonies, where probable cause is found to exist. Acts 1925, ch. 194, §5, p. 457, §4-2505, Burns’ 1946 Repl.; Acts 1921, ch. 267, §1, p. 1071, §4-2402, Burns’ 1946 Repl. (1953 Supp.) ; Acts 1921, ch. 161, §2, p. 404, §4-2403, Burns’ 1946 Repl.; Acts 1939, ch. 137, §1, p. 671, §9-704, Burns’ 1942 Repl.; Acts 1905, ch. 169, §72, p. 584, §9-711, Burns’ 1942 Repl., The State v. Morgan (1878), 62 Ind. 35; The State v. Hattabough (1879), 66 Ind. 223; Siebert V. The State (1884), 95 Ind. 471; Davis v. Bible, Sheriff (1893), 134 Ind. 108, 33 N. E. 910.

The statute regarding changes of venue in criminal cases provides as follows:

“On prosecution by indictment or affidavit the state or a defendant may apply for a change of judge on the ground that a fair and impartial trial cannot be had by reason of the interest, bias or prejudice of the trial judge.” (Our italics.) Acts 1937, ch. 290, §1, p. 1338, §9-1316, Burns’ 1942 Repl.

The specific issue upon which a decision must rest is whether the procedure by which (under §4-2402, supra) such a municipal court “shall hold such prisoner to bail for his appearance before the proper court, or commit him to jail in default of such bail,” constitutes a “trial” within the meaning of the statute authorizing change of venue (§9-1316, supra).

It is respondent’s position that the change of venue statute is applicable only to proceedings before the “trial judge” and that, because of the very limited statutory authority of the respondent with respect to the felony charge, the respondent was not a trial judge from whom a change of venue was authorized. On the other hand, it is relator’s position that such proceedings constitute a “trial” within the meaning of the statutes (§9-1316, supra) and also that refusal to grant the change of venue constituted a violation of the “due process clause” of the Constitution of the United States.

In support of its position, relator cites the fact that on the civil side of the law a “trial” is defined by statute as “a judicial examination of the issues, whether of law or fact, in an action.” Acts 1881 (Spec. Sess.), ch. 38, §371, p. 240, §2-1901, Burns’ 1946 Repl. (Our italics.) He contends (a) that the proceedings with which we are here concerned is an “action” within the meaning of the statute, and (b) that even though this is a criminal action, use of the word “trial” by the legislature in the change of venue statute (§9-1316, supra), applicable to criminal cases, indicates its intention that the same definition of the word be applied in both civil and criminal actions. Relator contends that the hearing conducted by the municipal court judge constitutes such a “trial” for the reason that it is a “judicial examinnation of issues . . . in an action” first, for the purpose of determining the fact of the court’s jurisdiction to finally adjudicate the cause and, if it is ascertained that he does not have such jurisdiction, then to dispose of the matter within his judicial authority by discharging the accused or recognizing him to appear and answer the charge that might be made in the criminal court. See Wischmeyer v. State (1929), 200 Ind. 512, 514, 165 N. E. 57.

In support of his position, relator cites the case of State ex rel. Jones v. Geckler, Judge (1938), 214 Ind. 574, 16 N. E. 2d 875, and asserts that it presents “a situation very similar to the one under review . . . (in which) the court mandated . . . change of venue.” However, the facts in that case are not analogous to those before us. Rather, they would seem by analogy to support respondent’s position herein. That case involved a charge of juvenile delinquency based upon the specific offense of assault and battery. The court in that case held that the proceedings constituted an adversary proceedings charging an individual with a specific offense constituting a misdemeanor, which resulted in a final adjudication of the issue and subjected the minor, if found guilty of the offense charged, to certain statutory commitments within the discretion of the court.

Furthermore, an examination of the other reported cases which have construed the above statute (§2-1901, supra), which states in definition that “The trial is a judicial examination of the issues, ... in an action,” discloses that they have not adopted the broad general construction which respondent advocates. In those cases where this court has considered the nature of “an action,” the “trial” of which is subject to change of venue, this court has stated the rule as follows:

“. . . It has been held by this court also that an action ‘is any judicial proceeding which, conducted to a termination, will result in a judgment,’ and that a civil action ‘is an action wherein an issue is presented for trial, formed by the averments of the complaint, and the denials of the answer, or the replication to new matter, and the trial takes place by the introduction of legal evidence to support the allegations of the pleadings, and a judgment in such an action is conclusive upon the rights of the parties, and could be plead in bar.’ Evans V. Evans, 105 Ind. 204, citing Deer Lodge Co. v. Kohrs, 2 Mon. 66, 70.” (Our italics.)

Berry v. Berry (1897), 147 Ind. 176, 179-180, 46 N. E. 470.

In none of the cases which have come to our attention has this court considered the proceedings “an action,” nor has it held that the “judicial examination of the issues” constituted a “trial” unless such examination was the basis for the final adjudication of an issue. For example, in the case of Chicago, etc. R. Co. v. Collins (1924), 82 Ind. App. 41, 54, 142 N. E. 634, 143 N. E. 712, the court stated that “ . . .A trial is an investigation under the direction and control of the state for the purpose of discovering the truth and establishing the facts upon which the sentence of the law may be pronounced. §542, Burns’ 1914, Acts 1881, p. 240; Ellenberg v. Southern R. Co. (1908), 5 Ga. App. 389, 63 S. E. 240. See Schwindt v. Graff (1924), 142 N. E. (Ohio) 736, 739.” (Our italics.)

Contrary to the position asserted by respondent, the proceedings authorized by §9-711, supra, did not constitute “an action” nor was the “hearing” a trial which was the basis for a final adjudication of any issue. It was merely what it was described to be: a ‘‘preliminary hearing” for the purpose of ascertaining whether or not there is probable cause why the accused should “be recognized to appear at the next term of the Criminal Court of such county.” On a charge of a felony, the Marion County Municipal Court, Room 3, could only recognize or discharge the accused. The proceedings could under no circumstances result in either the acquittal or the conviction of the accused. They were not conclusive of the rights of the accused and could not be pleaded in bar.

As stated in the case of Siebert v. The State (1884), 95 Ind. 471, 480, supra, the court, “under our law, has no jurisdiction to either acquit or convict a defendant charged with a felony, his (its) only authority in such a case being that of an examining court to hear and discharge, or commit and bind over, the defendant to appear before a court having jurisdiction to try the case.” Also, consistent with the fact that the disposition of a felony charge by a magistrate court does not constitute an adjudication of the issue of the charge, our courts have held that the discharge of the defendant by a magistrate is not a bar to a subsequent prosecution. Siebert v. The State, supra. See also, State v. Hattabough, supra; Hawkins v. State ex rel. Read (1865), 24 Ind. 288; The State v. Morgan, supra.

Relator’s insistence on his right to a change of venue from Marion County Municipal Court, Room 3, on the felony charge may have, with good reason, been prompted by an unfortunate statement made in the case of Carson v. State (1932), 204 Ind. 273, 278-279, 183 N. E. 544. The sole question in that case was whether or not an affidavit charging a felony was sufficient without the written approval of the prosecuting attorney as required by Acts 1905, ch. 169, §119, p. 584, §9-909, Burns’ 1942 Replacement. The court held that the affidavit was not sufficient to sustain a conviction in the circuit court of the felony charged. However, the court reasoned that the affidavit was sufficient to sustain a charge for a misdemeanor which was a proper lesser offense within the felony charge and, therefore, overruled the motion to quash the affidavit. In attempting to rationalize its position the court made two wholly conflicting statements with regard to the jurisdiction of a city court when confronted with a felony charge. The court first correctly stated the law as follows:

“. . . But where the crime charged is a felony, and the jurisdiction of the inferior court is limited to a preliminary hearing, an affidavit filed in the city court and used to present the offense in the criminal (or circuit) court is not sufficient unless it bears the approval of the prosecuting attorney. Wischmeyer v. State (1929), 200 Ind. 512, 165 N. E. 57.” (Our italics.)

However, in the next paragraph the court proceeded to make an incompatible and erroneous statement as to the jurisdiction of the city court as follows:

“The affidavit in the city court charged the misdemeanor of possessing intoxicating liquor, under §2717, Burns’ 1926. It also alleged that appellant had been convicted on two prior charges of violating the liquor law in the city court of Marion, giving the numbers of the cases and the sentences imposed, the effect of this allegation being to charge the felony defined by the same section of the statute. Under this affidavit the city court of Marion could convict the appellant if it found that he was guilty of the misdemeanor charged and was not guilty of the felony charged. If such court had found that he was guilty of the felony it would, for such offense, have had authority only to recognize him to appear and answer such charge in the circuit court.”

Confronted with a felony charge, the city court could make a determination of the case as above indicated. Sections 9-1806, 9-1816 and 9-1817, Burns’ 1942 Replacement (Acts 1905, ch. 169, §§261, 271 and 272, p. 584), relating to offenses of lesser degree within an offense charged, are not applicable to the facts here presented. Confronted with a felony charge, the judge could not try and convict the accused of any offense, either of the felony itself or a lesser offense (a misdemeanor) within the felony charged. His authority was limited to the discharge of the accused or to his recognizance to the criminal (circuit) court which alone had jurisdiction to try the offense, as expressly provided by §2-1402, Burns’ 1946 Repl. (Acts 1929, ch. 6, §1, p. 12). The Carson case, supra, cited no authority for its statement regarding the jurisdiction of the city court to try lesser degrees of offense within a felony charge. It has not since been cited as authority for such procedure nor has such procedure been generally adopted by the inferior courts of this state. Therefore, insofar as the Carson case is in conflict with this opinion, the same is disapproved and/or reversed.

We conclude therefore that the proceedings before the Marion County Municipal Court, Room 3, as to the felony charge do not constitute a “trial” before the judge of that court within the meaning of §§9-1316 or 2-1901, supra, under which the right to change of venue is mandatory.

Relator also contends that refusal of the Marion County Municipal Court, Room 3, to grant the change of venue in the felony charge constituted a breach of the “due process clause” to the Fourteenth Amendment to the Constitution of the United States. No authority has been cited which establishes relator’s position. On the contrary, these proceedings are very analogous to the preliminary examination of an accused conducted by a United States commissioner. The comissioner, like the judge of a municipal court, is authorized on preliminary examination merely to discharge or commit the accused to bail in a court having jurisdiction to try the case. See Fed. Rules Cr. Proc. rule 5, 18 U. S. C. A. In the case of United States v. Hughes (1895), 70 F. 972, the court held that the United States commissioners have no judicial power on a preliminary examination of one charged with crime and have only power in a ministerial capacity to determine probable cause. In these proceedings there is no provision for a change of judge and none is contemplated for the reason that the commissioner does not act in the capacity of a judge.

Relator’s contention that the due process clause of the Constitution of the United States was violated by respondents in their refusal to grant his application for a change of judge is rendered untenable by a decision of the Circuit Court of Appeals in California in the case of Dainard v. Johnston (1945), 149 F. 2d 749 (Certiorari denied, 326 U. S. 783, 66 S. Ct. ). In that case the prisoner had been arrested in San Francisco by police officers. Under Fed. Rules Cr. Proc. rule 5, 18 U. S. C. A., supra, said police officers were required by law to bring the prisoner without delay before the nearest available commissioner or before any other nearby officer for preliminary hearing. Instead, the police officers took the prisoner to Tacoma, Washington before the judge of the District Court without first bringing him before a magistrate. The prisoner was subsequently convicted and sentenced to the Federal Prison at Alcatraz. He then brought a habeas corpus action, alleging that the violation of the law by the police officers in not taking him before a magistrate constituted a denial of due process of law, and therefore that his conviction was a nullity. The United States Court of Appeals held that the police officers did, in fact, violate the law and that the prisoner should have been brought before a United States commissioner, but the court held that such violation of the law did not constitute a violation of the “due process clause” and that the subsequent proceedings, which resulted in the prisoner’s conviction and incarceration were valid. By analogy it would seem necessarily to follow that refusal to grant a change of venue from a magistrate, whose only authority in a cause was to hold a preliminary hearing and either discharge the accused or recognize him to a criminal court for trial, could not constitute a breach of the “due process clause” to the Fourteenth Amendment to the Constitution of the United States.

We conclude, therefore, that there is no constitutional or statutory authority which requires the granting of a change of venue of a felony charge pending before the Marion County Municipal Court. Therefore, the temporary writ of prohibition heretofore issued by this court in this cause is dissolved, and relator’s application for a permanent writ of mandate is denied.

Emmert, C. J., dissents with opinion; Bobbitt, Landis and Arterburn, JJ., concur.