State ex rel. Williams v. Ellis

Morris, C. J. Original action in this court under act of March 8, 1915 (Acts 1915 p.'207), for writ of mandate to compel defendant, judge of the Delaware Circuit Court, to call a named, elected and acting judge, to hear a cause in which a change of judge had been granted, and to prohibit further proceedings until the termination of this action. The complaint avers that on. and prior to June 14, 1915, defendant Ellis was the regularly elected and acting judge of the Delaware Circuit Court and that J. Frank Mann was the regularly elected and acting prosecuting attorney of Delaware County; that previous to said June 14, relator, Gene Williams, was indicted in ten different criminal eases; that on said day relator filed his motion in each case for a [309] change of judge, and each motion was sustained; that thereupon relator and Mann, prosecuting attorney, appeared in open court, presided over by defendant Ellis, and agreed that certain named judges of circuit courts of Indiana should be called to hear and try each of said causes in which relator is defendant, and orally moved that said judges be called to hear the same; that afterwards, on June 18, 1915, the court, defendant presiding, overruled each of said motions and thereupon announced that on the following day five disinterested and competent persons would be nominated by the court from which a judge could be selected to hear each cause. The relator prays for a mandatory order against defendant requiring him to call, to try each cause, the circuit court judge agreed upon by relator and the prosecuting attorney, and to prohibit further proceedings until the final hearing in this case. In defendant’s return to the rule to show cause it is averred that more than a year before the commencement of this proceeding, said prosecuting attorney duly appointed relator as deputy prosecuting attorney for the circuit, and that ever since relator has acted in such capacity; that on March 8, 1915, the grand jury of Delaware County was in session, and, in writing, reported to the court that it desired to investigate the office of prosecuting attorney, and requested the appointment of a special prosecuting attorney to assist it in such investigation; that subsequently, on the same day, said Mann, appeared in open court and filed bis written consent to the requested. appointment, conditioned on its limitation to the matters relating to the office of prosecuting attorney; that thereafter on the same day, the court appointed William A. Thompson as a special prosecuting attorney to assist the grand jury in matters wherein Mann, regular prosecuting attorney, [310] was incompetent to act, because of personal interest; that Thompson accepted the appointment; that subsequently, on April 23, 1915, the grand jury returned the said ten indictments against relator, each of which charges relator with a crime growing out of his alleged actions connected with the office of prosecuting attorney, and while he was acting as such deputy; that after the return of the indictments, citizens of the county, by written petition, prayed the court to appoint said Thompson as special prosecutor to prosecute the said causes against relator, and that thereupon Mr. Mann, the regularly elected prosecuting attorney, appeared in open court and consented to the requested appointment; that Mr. Mann, after the return of the indictments against his deputy, openly declared his belief of relator’s innocence of the offenses charged, and declared that he would be an important witness for relator at the trials of the causes; that thereafter the court, defendant presiding, by order duly entered did appoint Thompson as special prosecutor to represent the State of Indiana in each of the causes, in all future proceedings therein; that in the order it was found and adjudged that Mann was incapacitated from performing any duty in connection with the prosecution of the cases; that Thompson accepted the appointment; that relator still occupies the position of deputy and is actively engaged in the performance of the duties-of his position; that on June 17, 1915, Mr. Mann departed from the State of Indiana, for an absence of many weeks, leaving relator in charge of the office. [312] 1. [310] The defendant admits the making and overruling of relator’s motions as alleged in the complaint, and denies that Mr. Mann had any power to make any binding agreement with relator for the appointment of a special judge, and further avers that he [311] did, on June 19, 1915, and before the petition herein was filed, nominate five named acting circuit court judges of Indiana from whom a judge in each cause may be selected. Acts 1915 p. 30. A demurrer was filed to defendant’s return, which requires us to determine its sufficiency. Our statutory law authorizes a change of judge in certain contingencies. §2074 Burns 1914, Acts 1905 p. :584, §203. Section 204 of the public offense act of 1905 was amended in 1915, to read as follows: “In all cases where the change of venue is taken from the judge in any criminal action pending in any court in this state, or in any ease where the presiding-judge is disqualified from any cause, to try such, cause, if the prosecuting attorney on behalf of the state and the defendant shall agree in open court upon some judge or member of the bar of any court in this state to try such cause, it shall be the duty of such court to appoint such judge or attorney so agreed upon to try such cause. In the absence of such agreement, it shall be the duty of the court within five (5) days to nominate five (5) competent and disinterested persons, each of whom shall be an available judge or member of the bar of this state, to be submitted to the parties in the action from which the State of Indiana, by the prosecuting attorney, for the plaintiff’s side and the defendant or defendants, within, two (2) days thereafter may strike off two (2) of such names, each. The court shall thereupon appoint such person who shall remain unchallenged to preside in said cause and if the prosecuting attorney and the defendant or his attorney refuse to strike off names, then the clerk of the court shall strike for them. And, if the person so appointed, if not a regular judge, if he consent to serve, such attorney shall be qualified as other judges and his appointment and oath shall be filed with the clerk and [312] entered on the order book and he shall have power to hear and determine such cause until the same is finally disposed of.” Acts 1915 p. 30. Sections 11 and 12 of article 7, of the Constitution of Indiana (adopted 1851), read as follows: Section 11. “There shall be elected in each judicial circuit by the voters thereof, a prosecuting attorney, who shall hold his office for two years.” Section 12. “Any judge or prosecuting attorney who shall have been convicted of corruption or other high crime, may, on information in the name of the state, be removed from office by the supreme court, or, in such other manner as may be prescribed by law.” The Constitution in nowise prescribes the duties of a prosecuting attorney. The office was unknown to. our first Constitution (1816), and was, in its origin, as early as 1824, a creature of statute. State, ex rel. v. Home Brewing Co. (1914), 182 Ind. 75, 87, 105 N. E. 909. The office was carved out of that of the common-law office of attorney general, who originally discharged all the duties now devolving on the two, officers. Prosecuting attorneys, as the name indicates, are officers of the court. People v. May (1855), 3 Mich. 598. But their official duties comprehend a wider scope than that of a mere attorney. 32 Cyc 689. In this State they can be removed from office only by this court, on previous conviction of corruption or other high crime. State v. Patterson (1914), 181 Ind. 660, 105 N. E. 228; State v. Redman (1915), 183 Ind. 332, 109 N. E. 184. Their duties are, in general terms, prescribed by statute. § §9405, 9406 Burns 1914, §§5863, 5864 R. S. 1881. [313] 2. 3. 4. 5. [312] No small part of plaintiff’s brief is devoted to the proposition that the Delaware Circuit Court had no right to remove the prosecuting attorney from the office to which he was regularly elected. The rec [313] ord discloses no removal from office, nor attempt in such direction. It presents only the questions, (1) Was Mr. Mann incompetent to prosecute relator, and, if so (2) Did the circuit court have power to appoint a special prosecuting attorney in the eausesjn controversy, and, if such appointment was valid, (3) Did the regular prosecuting attorney have the power, under the act of 1915 (Acts 1915 p. 30), to agree, ■ on behalf of the State, to the selection of a judge to hear the causes in question? Was Mr. Mann, under the facts here alleged, incompetent? Manifestly he was of the opinion that he was disqualified, for he consented to the appointment made by the court. Notwithstanding, relator contends that the order was void on its face, and that he has a right to demand that this prosecution be by the officer elected by the people. The prosecuting attorney has been held a judicial officer. State v. Henning (1870), 33 Ind. 189. Certainly he is invested with important discretionary power in a motion for a nolle prosequi. The Constitution guards him against removal as it does the judge. State v. Patterson, supra. The statute authorizes him to appoint a deputy (§9158 Burns 1914, §5568 B. S. 1881), and the latter can perform any duty pertaining to the office. Stout v. State (1884), 93 Ind. 150. It was a maxim of the common law that no one can be a judge in his own case. Cooley, Const. Lim. (7th ed.) 592, 595; Coke, Litt. §212. The common law was adopted here when Indiana was a territory, and has, except as limited by treaties, constitutions and statutes, been ever in effect since the State’s admission to the Union. In such cases, constitutions and statutes should be construed in the light of common-law rules. Cooley, Const. Lim. (7th ed.) 94; Curless v. [314] Watson (1913), 180 Ind. 86, 90, 91, 102 N. E. 497. In Markley v. Rudy (1888), 115 Ind. 533, 536, 18 N. E. 50, where a county surveyor was interested in a ditch, and of Mn to other parties interested, and was attempting to perform official duties in regard to its repair, this court said: “It is a fundamental rule in the administration of justice that no person can be judge in a cause in which he is interested. * * * This elementary principle has been so long and so universally recognized that it has become an accepted legal maxim. Broom, Legal Maxims 116. It is also a general rule, nearly as well recognized, that no executive or administrative officer shall take official action in a matter involving the rights of others in which he is personally interested.” It was further declared in the opinion, that Kelly v. Hocket (1858), 10 Ind. 299, in so far as it conflicted with that opinion, was overruled. In Metsker v. Whitsell (1914), 181 Ind. 126, 137, 103 N. E. 1078, it was held that a county commissioner who, previous to his election, was surety on an appeal bond in a former appeal of a highway proceeding was disqualified, because of interest, from acting in the matter. In Juliana v. State (1906), 167 Ind. 421, 79 N. E. 359, the appellant, pursuant to statute, was granted a change of judge in a criminal proceeding. At that time it was necessary for the regular judge to appoint the special one to hear the cause. A statute then in force denied a defendant more than one change of judge. §2078 Burns 1908, Acts 1905 p. 584, §207. The regular judge appointed as special judge, an attorney who had been consulted by appellant for employment as his attorney, but who was never so employed. The appellant, notwithstanding the one change procured by him, objected to the appointment because the appointee was not disinterested. In reversing the judgment of [315] conviction, and vacating the appointment of the special judge, the court quoted approvingly from Joyce v. Whitney (1877), 57 Ind. 550, 554, as follows: “Judges are by no means free from-the infirmities of human nature, and, therefore, it seems to us, that a proper respect for the high positions they are called upon to fill should induce them to avoid even a cause for suspicion of bias or prejudice in the discharge of their judicial duties.” See, also, Small v. Buchanan (1905), 165 Ind. 549, 76 N. E. 167. In Knickerbocker Ice Co. v. Gray (1.905), 165 Ind. 140, 72 N. E. 869, 6 Ann. Cas. 607, 610, note, it was held that a stenographer of an attorney of one of the parties to an action was disqualified by interest from writing the deposition of a witness for use on the trial. In Wilson v. State (1861), 16 Ind. 392, it was held that an attorney who had previously been consulted for employment by defendant could not appear in his prosecution, though there was no express- statute which prohibited such iniquitous practice. In Block v. State (1885), 100 Ind. 357, the appellant was convicted of murder in the Decatur Circuit Court on an indictment returned by the grand jury of Rush County. One of the jurors was Sanford Grayson, a person not regularly engaged in the practice of law, but who, previous to the commission of the alleged offense, had been appointed by the prosecuting attorney of Decatur County as his deputy, in and for an outlying township of that county. Appellant was ignorant of such appointment until the trial was concluded. In his motion for a new trial he presented the question of Grayson’s competency. Grayson made affidavit that his relation with the prosecuting attorney in nowise affected his verdict, that he was not questioned on such subject on his voir dire, and that when examined it did not occur [316] to Mm that his employment could affect the question of his competency. The trial court overruled the motion for a new trial, and this court conceded in the opinion that the failure of the juror and prosecuting attorney to make'known their relation, before the jury, was sworn, was a mere inadvertence. On behalf of the state it was contended that because of the statute (§1793 R. S. 1881, §1862 Burns 1901), which provided that the “following, and no other, shall be good causes for challenge,” and which did not designate any matter of the Mnd there in controversy as a proper cause, precluded the holding of reversible error on appeal. In reversing the judgment the court quoted with approval from Central R. Co. v. Mitchell (1879), 63 Ga. 173, the declaration that “A close relative is a less dangerous juror * * * than one who is dependent on his employer.” To the same effect, see Gaff v. State (1900), 155 Ind. 277, 55 N. E. 74, 80 Am. St. 235; Zimmerman v. State (1888), 115 Ind. 129, 17 N. E. 258. In this case, if the facts warrant, it would be the prosecuting attorney’s duty, both to the people whose majesty he represents, and to the defendant whose lawful rights he may not disregard, to move for a nolle prosequi. He owes a duty to both State and defendant, and if the facts are such as to preclude the exercise of his full duty to both he should step aside. People v. Fielding (1899), 158 N. Y. 542, 53 N. E. 497, 70 Am. St. 495, 46 L. R. A. 641; State v. Montgomery (1909), 56 Wash. 443,. 105 Pac. 1035, 134 Am. St. 1119, 21 Ann. Cas. 331; Cooley, Const. Lim. (7th ed.) 440, and note 2. It would scarcely be questioned that relator might lawfully have objected to Mr. Mann having conducted relator’s prosecution, had the former, on the return of the indictments, promptly discharged [317] relator as Ms deputy, and stated that he expected to be an important witness for the State. Indeed, on the facts stated in the return, we are of the opinion that relator might claim the right to be prosecuted by an officer not affected by such employment relation. To the credit of Mr. Mann be it said that he promptly consented to the suggestion that he was incapacitated from conducting the prosecution. Moreover, in the brief of defendant judge, it is stated that he makes no charge against Mr. Mann of any sort of official misconduct. We are of- the opinion that Mr. Mann was disqualified from prosecuting the cases. 6. 5. However, it is claimed by relator that, conceding Mr. Mann’s disqualification, it is incumbent on him to appoint the special prosecutor. We do not concur in this view. One may not do indirectly what the law forbids him doing directly. A like' question was presented to the Oklahoma Criminal Court of Appeals, which held that “the county attorney, being disqualified in this case, was without power or authority to appoint any one to represent him.” Hartgraves v. State (1911), 5 Okl. Cr. 266, 114 Pac. 343, 33 L. R. A. (N. S.) 568, Ann. Cas. 1912 D 180. While the act of 1915 (Acts 1915 p. 30) requires the appointment of a judge agreed on by the defendant and prosecuting attorney it must be held that the prosecuting officer contemplated in any case is the officer authorized to prosecute it, and since Mr. Mann is here disqualified, he was not authorized to make any binding agreement for the appointment of a special judge. 6. Relator contends, however, that the court was without lawful authority to appoint any special prosecutor, and that the law makes no provision therefor, and consequently a sitúa [318] tion is presented that necessarily requires the conclusion that the regularly elected prosecuting attorney may make a binding agreement regardless of his disqualification. A statute of Indiana, in force since 1824, reads as follows: “If any prosecuting attorney fail to attend any court of his circuit, the judge of such circuit shall appoint some person to prosecute for such term, who shall receive the 'docket-fees of such term and such additional compensation as the court may deem reasonable, to be drawn from the state treasury on the allowance of the court, and which allowance shall be deducted from the salary of such prosecutor.” §9407 Burns 1914, §5865 R. S. 1881. In Dukes v. State (1858), 11 Ind. 557, 71 Am. Dec. 370, the appellant was tried by a special prosecutor on an indictment signed by him. It appears that at a term of court, the regular prosecutor failed to appear and the court appointed an attorney as special prosecutor for the term. In that case, however, such special prosecuting attorney was disqualified, because he was of counsel for appellant, and, thereupon, the court appointed Mr. Suit as special prosecutor for that case, who signed the indictment and conducted the prosecution. On appeal it was contended (1) that the indictment was bad because not signed by the regular prosecuting attorney, and (2) that Suit’s appointment was void “and, hence, that there was no prosecutor in the case.” Each contention was overruled. The reason assigned in the opinion for overruling the first objection was that no signature by a prosecuting attorney was necessary. The reason given for overruling said second objection was that “the court possesses an inherent power to appoint one of the attorneys of the court, when necessary to prevent a failure of justice, to conduct the prosecution of a criminal,” Assigning such reason, for the act of ap [319] pointment of Suit, was criticized in Board, etc. v. McGregor (1909), 171 Ind. 634, 87 N. E. 1, 17 Ann. Cas. 333, a cáse involving compensation from the • public treasury to an attorney who assisted the regular prosecutor in his duties. ■ In that case, in discussing the Dukes case, on page 637, it was said: “The act of the judge in appointing another, pro tem, to fill the vacancy caused by the disqualification of the prosecutor in that particular case was not the exercise of an inherent power of the court, but rather the exercise of a power implied from the statutory authority to fill the temporary vacancy.” (Italics ours.) It often happens that courts reach right results but state incorrect reasons for their actions. In this case it is not important whether the court’s authority to appoint is derived from implied statutory grant, or inheres from implied constitutional authority. The McGregor case, supra, does not purport to overrule the Dukes case in its holding. It only assumes to declare that an incor- ■ reet reason was given for a lawful act. And, unless we resort to extreme technicality, there is little reason for holding that where the legislature expressly provided that the court might appoint a special prosecutor for a whole term, because of the regular prosecutor’s absence, that it did not intend that the court might appoint a special prosecutor for the usually short period required to dispose of a single case, where the regular prosecutor was disqualified from acting'. A disqualified officer might just as well be absent as present. His physical presence in court would in nowise affect the trial of causes where the law prohibits him from participating. It' has been known by all legislatures since 1824, that it must often happen that prosecuting attorneys, elected every two years, will be incapacitated from prosecuting' particular cases because of previous [320] retainers by the accused, and, sometimes, because the prosecuting attorney might be the defendant in a criminal charge. State v. Henning, supra. A vacancy in the office of prosecuting attorney is filled by the Governor, but no one contends that a disqualification of such attorney to prosecute a single case causes such vacancy. If the circuit court is not warranted in making such appointment, authority therefor must be held lacking, in which case, after three terms, the accused would be properly discharged. §2091 Burns 1914, Acts 1905 p. 584, §220; State v. Kuhn (1900), 154 Ind. 450, 56 N. E. 106. It is not conceivable that the legislature ever contemplated such absurd result. In Dukes v. State, supra, it was held, in 1859, that the circuit court had the power to appoint a special prosecutor where the regular one was disqualified. Probably the decision was in line with the practice followed theretofore since the office .of prosecuting attorney was created. It recognized a power followed by courts of other states, except where other provision is made. Hartgraves v. State; supra; State v. Flavin (1915), 35 S. Dak. 530, 153 N. W. 296; 32 Cyc 719; 12 Cyc 531; Taylor v. State (1905), 49 Fla. 69, 38 South. 380; King v. State (1901), 43 Fla. 211, 31 South. 254; State v. Moxley (1890), 102 Mo. 374, 14 S. W. 969, 15 S. W. 556; Commonwealth v. McHale (1881), 97 Pa. St. 397, 39 Am. Rep. 808; White v. Polk County (1864), 17 Iowa 434; Keithler v. State (1849), 18 Miss. 192; Territory v. Harding (1887), 6 Mont. 323, 12 Pac. 750. We are of the opinion that, under the facts stated, the court was authorized to appoint a special prosecutor in the eases where Mr. Mann was disqualified. [321] 7. [320] It is contended by relator that if it be held proper to appoint a special prosecutor here that a judge of a [321] circuit court may arbitrarily appoint a special prosecuting attorney in any case without other restraint than his own will. Warrant for such contention will not be found in this opinion. We do not hold that because the judge of some court might be of the opinion that a given cause might be better prosecuted by some one other than the regular official, he would, therefore be warranted in appointing such other person as special prosecutor. Neither lack of intellect, learning, nor even moral courage, in prosecuting attorney, judge or other elective officer, constitutes a disqualification to act officially, and a judge would no more be justified in supplanting a prosecuting attorney for such deficiency than would the latter be warranted in demanding a more learned, conscientious and capable judge to hear the causes he must prosecute. The responsibility for lack of capacity in officers must rest on the people who elected them. State v. Flavin, supra. The demurrer to defendant’s return is overruled. Spencer and Erwin, JJ., dissent.