Wolfe v. State

199 N.E. 242, 209 Ind. 429

• Court: Indiana Supreme Court
• Decided: January 15, 1936
• Docket: No. 26,444.
• Status: Published

Opinion

Fansler, J.

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 j udge 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 ap point another special judge. Fassinow v. 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. 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.