(149 N.E.) cause he believes that he cannot have a, 9. Criminal law 286-Court held to have fair trial owing to bias and prejudice of judge against him. 4. Judges 51 (4)-Judge cannot reject motion for change of judge because he believes it was presented for purpose of delaying trial or was not reasonably filed after discovery of cause for change. Where, in motion under Burns' Ann. St. 1914, § 2074, for change of judge, proper affidavit was filed stating facts which, if true, showed that it was not possible to comply with circuit court rule regulating filing of such motion, held, that court was without authority to reject motion because he concluded from facts known to him that it was presented for purpose of delaying trial or was not filed as soon as was reasonable after discovery of cause for change. 5. Judges 51(4)-Imperative duty of judge to grant change of judge, where affidavit under oath states sufficient reasons for not presenting it within time allowed by court rule. Where an affidavit in statutory form showing under oath sufficient reasons for not presenting it within time allowed by court rule is presented to trial court before beginning of trial, asking for change of venue from the judge, it is imperative duty of court to grant it. 6. Courts 80(1)-Circuit court rule cannot require applicant for change of judges, whose motion not presented within time fixed by court rule, to set out facts showing that motion made as soon as reasonably possible. erred in rejecting offered plea of insanity. In view of Burns' Ann. St. 1914, §§ 2068, 2069, 2070, held, that circuit court committed error, in rejecting offered plea of insanity on ground that it was not offered until after cause had been declared at issue contrary to circuit court's rule, especially where defendant's connection with crime charged is established only by inconsistent admissions made by him. Appeal from Circuit Court, Clay County; Thos. W. Hutchison, Judge. Edward Barber was convicted of murder in an attempt to perpetrate robbery, and ap peals. Reversed with directions. Henry W. Moore, Felix Blankenbaker, James P. Stunkard, and Victor O'Donnell, all of Terre Haute, for appellant. Arthur L Gilliom, Atty. Gen., for the State. PER CURIAM. The appellant, jointly with Joe Parker, was charged by indictment with the murder of Steven Kendall in an attempt to perpetrate a robbery. He was tried sep arately by a jury, was found guilty, and sentenced to death. Refusing to permit him to file a special plea of insanity and overruling his motion for a new trial are assigned as errors. The sufficiency of the indictment as against an objection that it does not state facts sufficient was upheld in Parker v. State (Ind. Sup.) 149 N. E. 59. On the authority of that case, the contention of appellant that the verdict was contrary to law because the indictment failed to charge the offense of murder in the first degree committed in the per The power of circuit court to adopt rules does not extend to imposing on applicant for change of judges, whose motion is not presented within time fixed by court rule, obligation to set out in his affidavit, to court's satisfaction, facts showing that motion was made as soon as reasonably possible after dis-petration of a robbery is overruled. covery of cause for asking change, in addition to averring that it was made at earliest time possible after learning of judge's bias and prejudice. 7. Judges 51 (3)—That affidavit in motion for change of judges not as clear as might be not ground for overruling motion. Though averment in motion for change of judges under Burns' Ann. St. 1914, § 2074, that it was filed at earliest time possible after defendant's having learned of judge's bias and prejudice, was not as clear and explicit as it might have been, it was not sufficient to warrant overruling motion for change of judge, especially as where meaning was unmistakable and case was a capital one. 8. Criminal law 1144(2)-Assumed that record shows circuit court rule to have been in force where set out several times in bill of exceptions. Though merely reciting circuit court's rule in order book entry on overruling a motion is not sufficient to establish that rule is in force, where rule is set out several times in bill of exceptions, Supreme Court will assume that record shows it to have been in force. On defendant's application the venue was changed from Vigo to Clay county, where the transcript was filed on the 16th of April, 1924, and the record recites that on said day the defendant, in person, appeared in open court, and, in reply to questions as to whether or not he wished counsel assigned to defend him, stated that he was being defended by certain attorneys of Terre Haute; that he was thereupon arraigned and entered a plea of not guilty, whereupon the cause was set for trial 10 days later; that on proper motion a con tinuance was granted for the purpose of taking depositions; and that the cause was reset for trial on May 5, 1924. But on April 26, 1924, being the date on which it was originally set for trial, the court made an entry that, "Come the parties by counsel and this cause is declared at issue," no other proceed ings in the cause at that time being record ed. And the record further recites that on the morning of May 5, 1924, the defendant being present in person and by his counsel, the regular panel of the jury for the May term was placed in the box, pursuant to the order and direction of court, by way of preparing For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 149 N.E.-57 Spencer v. Spencer, 136 Ind. to begin the trial, whereupon defendant, with the rule. "And the court having heard and inspected the evidence presented for and against said motion, and being sufficiently advised in the premises, finds that said motion is presented for the sole purpose of delaying the trial of said cause, and not in the interest of justice and a fair trial; that the motion and affidavit as presented is a violation of rule 32 of the Clay circuit court of Indiana, in that it does not contain any facts whatever showing that the cause for the change of venue was not discovered until after the day fixed by the rule for the filing of an application for such a change; that the court finds, from an inspection of the affidavit itself and other evidence presented, that the motion and affidavit for a change of venue was prepared some time in advance of the day on which the cause was set for trial, and that it was not filed as soon as was reasonable after the discovery of the cause, if any, for a change of venue, and was withheld from record for the purpose of making it impossible to secure a special judge in time to proceed with the trial at the time heretofore fixed by the court for the same to com* The motion and affidavit is therefore overruled, to which ruling the defendant took an exception at the time." mence. As set out in several bills of exceptions, rule 32 of the Clay circuit court reads as fol lows: [3-5] But to the defendant alone, and not to the judge, is committed the determination of the question whether or not he shall have a change of venue because "he believes that he cannot receive a fair trial, owing to the bias and prejudice of the judge against him." Section 2074, Burns' 1914; section 203, ch. 169, Acts 1905, p. 628. And where a proper affidavit is filed that also states facts which, if true, show that it was not possible to comply with a rule of court regulating the filing of such motions, the court is without authority to reject the motion, or to overrule it because the judge concludes from facts known to him that it "is presented for the sole purpose of delaying the trial of said cause," or that it "was prepared in advance of the day on which the cause was set for trial," or that the sworn statement in support of the motion is untrue, and that it "was not filed as soon as was reasonable after the discovery of the cause, if any for a change of venue." If the Legislature had intended to leave the trial judge, accused by the defendant of having such bias and prejudice against him that defendant could not have a fair trial, the authority to determine whether or not that was really the reason for which a change of venue was asked, the statute probably would not provide, as it does, that in case a defendant shall show by affidavit that he "believes" he cannot have a fair trial, owing to the bias and prejudice of the judge against him, such change shall be granted. It has long been the settled law of this state that where an affidavit in the statutory form, showing under oath a sufficient reason for not presenting it within the time allowed by a rule of court, is presented to the trial court before the beginning of the trial, asking for a change of venue from the judge, it is the imperative duty of the court to grant it. Ogle v. State, 133 Ind. 358, 360, 33 N. E. 95; Munce v. State, 187 Ind. 263, 18, N. E. 953. "32. In addition to all other requirements, all applications for change of venue from the judge or county must be filed so that at least five full days will intervene between the day the [6] Neither does the power to adopt rules application is filed and the day on which the extend to imposing on an applicant for a cause is set for trial, except where the cause for the change is not discovered until after the change of venue, whose motion is not presentday fixed by the rule for the filing of the ap-ed within the time fixed by a rule of court, plication, when the motion must be made as soon as is reasonably possible after such discovery, and the facts showing the same must be set out in the affidavit in support of the application, to the satisfaction of the court." [1, 2] Circuit courts may adopt rules for conducting the business therein not repugnant to the laws of the state. Section 1443, Burns' 1914; section 1323, R. S. 1881; Magnuson v. Dillings, 152 Ind. 177, 180, 52 N. E. 803; State v. Van Cleave, 157 Ind. 608, 62 N. E. 446. And their power to limit the time within which a motion for a change of judge may be presented is subject only to the exception that such a motion cannot be rejected for that cause when the reason for asking the obligation to set out in his affidavit, to the satisfaction of the court, facts showing that the motion has been made as soon as reasonably possible after discovery of the cause for asking such change, in addition to averring that it is made “at the earliest time possible" after learning of the bias and prejudice of the judge. This is not unlike the attempt to require applicants to show by their affidavits that diligence was used to discover the causes relied on which they made oath they did not discover in time to comply with the rule. And it has been decided more than once that a trial court cannot impose that burden as a condition of granting a change of venue. Ogle v. Edwards, 133 Ind. 358, 33 N. E. 95; Wilson v. Johnson, 145 Ind. 40, 42, 38 (149 N.E.) [7] The averment in the affidavit under con- | 169, Acts 1905, p. 627. And that when it is sideration that the defendant makes and files desired to plead on behalf of a defendant that it "at the earliest time possible, after his hav- he was of unsound mind at the time the ofing learned of said bias and prejudice," is not fense was committed, "he himself, or his as clear and explicit as it might be. But the counsel must set up such a defense specially meaning is unmistakable; and in a capital in writing." Section 2070, Burns' 1914; seccase, where the defendant is on trial for his tion 1, ch. 298, Acts 1913, p. 774. These statlife, we do not think that rules of grammar utes give the defendant, or his attorneys, auand rhetoric should be permitted to override thority to file a plea in writing that has no his statutory right to avoid being put upon direct relation to the oral plea of guilty, or trial before a judge that he has come to "be- not guilty, which is required to be made at lieve" has a bias and prejudice against him, the time of arraignment, where the court if he files his motion at the earliest time pos- does not grant further time in which to plead. sible after having learned of such bias and And we find no authority of law for the judge prejudice. It was error to overrule the mo-to cut off the right to enter a plea of insanity tion for a change of judge. by an order of court that "this cause is de [8,9] After the motion for a change of ven-clared at issue," whether pursuant to a rule ue from the judge had been overruled, counsel for defendant tendered to the court and asked permission to file a plea of insanity, alleging that he "was a person of unsound mind at the time of the act and crime stated in the indictment." But the record recites that "The court, having heard and inspected the evidence for and against such request, and being sufficiently advised in the premises, finds that rule 29 of the Clay circuit court, which is now in force, reads as follows: 29. After the issues in a cause have been declared closed the same may not be reopened except for good cause shown by affidavit or by agreement of the parties.' That after due notice to all the parties herein, the court ordered the issues closed on April 26, 1924, and that the filing of such plea at this time would be a violation of said rule 29. * * * The court therefore denies the defendant the right to file such plea, and rejects the same, to which ruling an exception was taken by the defendant at the time." The rule of court thus referred to is also set out two or three times in bills of exceptions, and we shall assume that the record shows it to have been in force, although merely reciting it in the order book entry upon overruling this motion would not sufficiently establish that fact on appeal. The statute provides that upon being arraigned by reading the indictment to him the defendant "shall then be required to plead immediately thereto, either in abatement or in bar; but the court, for cause shown, may grant him further time to plead." Section 2068, Burns' 1914; section 197, ch. 169, Acts 1905, p. 627. Also, that he may plead the general issue orally, under which he may present any matter of defense except insanity, but that he may plead specially any matter of defense. Section 2069, Burns' 1914; section 198, ch. of court or otherwise. The authority which is given to counsel representing the accused to set up the defense of insanity, as contrasted with the right to do so given to "him, himself," indicates a legislative purpose to provide for something more than a plea entered at the time of arraignment, or entered before a time when the trial judge shall declare the issues closed. Even if it be assumed that a discretion as to accepting or rejecting a special plea of insanity presented on the morning of the day fixed for the trial of the cause is vested in the trial court (a matter concerning which we express no opinion), that discretion did not extend to rejecting such a plea offered by the attorneys for an 18 year old boy accused of a capital offense who was not identified by either of the three eyewitnesses of the crime, and whose connection with it was only established by his own admissions contained in statements made by him at different times, which were inconsistent with each other, and the truth of all of which he denied at the time of the trial. Evidence of his mental condition might be even more important in determining whether or not his admissions of guilt were to be accepted and believed, than they were in deciding whether or not he was of unsound mind to such an extent that he was not answerable for the crime in case he committed it. The court erred in rejecting the offered plea of insanity. Other questions discussed by counsel may not arise when the cause is again tried. The judgment is reversed, with directions to sustain the motion for a new trial and to permit defendant and his attorneys to file a plea in writing setting upon the defense of insanity. The clerk of this court will issue the proper order for the return of the prisoner to the custody of the sheriff of Clay county. and practice applicable to appeals in such cases STATE ex rel. WHEELER v. LEATHERS, should control. (Supreme Court of Indiana. Dec. 15, 1925.) 1. Mandamus 4(1)-Prohibition 3(2)— Not issued to control jurisdiction or to serve purpose of appeal or writ of error. Writs of mandate or prohibition will not be issued under Burns' Ann. St. Supp. 1921, 8 1224, to control judicial action or be made to serve purpose of an appeal or writ of error in reviewing or reversing a judicial decision. 2. Judges 51(4)-Application for change of judge does not involve issue of fact calling for exercise of judicial discretion. The cause invoked by a timely affidavit seeking change of judge under Burns' Ann. St. 1914, § 422, subd. 7, does not involve an issue of fact calling for exercise of judicial discretion, but statute is an arbitrary mandate imposed by law on court to grant change. 3. Judges 49(1)—That a proceeding under a special statute not providing for change of judge for bias does not preclude parties thereto from obtaining change. That proceedings for assessments of benefits for sewer improvement is a special statu: tory proceeding under Burns' Ann. St. 1914, § 8729, which statute makes no provision for change of judge on ground of bias as provided for under section 422, subd. 7, does not necessarily preclude either of parties thereto from a change of judge. 4. Judges 40-Demand for change of judge in special statutory proceedings within statute defining what are civil actions. 7. Judges 40-Farm drainage proceedings in nature of civil action and omissions supplied by Civil Code, which applies. ceeding is statutory (Burns' Ann. St. Supp. Though a farm drainage assessment pro1921, § 6143), it is nevertheless in its nature a civil action, and the Civil Code applies to supply omissions such as provision for change of judges in the special action. 8. Mandamus 10-Issued only to compel performance of clear legal duty. can be issued only to compel performance of "Mandamus" is an extraordinary writ which a clear legal duty, which must be absolute and imperative and not dependent on exercise of discretion or judicial determination. and Phrases, First and Second Series, Man[Ed. Note.-For other definitions, see Words damus.] Original action for writ of prohibition by the State of Indiana, on the relation of Altie G. Wheeler, against Hon. James M. Leathers, Special Judge of the Marion Circuit Court, and another, wherein a restraining order was issued. Restraining order set aside and dissolved, and prayer of petition denied. Ward H. Watson and Sol H. Esarey, both or Indianapolis, for appellant. William Bosson and Merle N. A. Walker, both of Indianapolis, for appellees. MYERS, J. This is an original action brought in this court for a writ of prohibition (Acts 1915, p. 207, c. 87, § 1; section Demand for change of judge under Burns' 1224, Burns' Supp. 1921) against the HonorAnn. St. 1914, § 422, subd. 7, made in proceed-able James M. Leathers as special judge of ings for assessments of benefits for sewer im- the Marion circuit court, praying that he "be provements under section 8729, and involving restrained from further sitting and acting as an issue for protection of a private right, is within section 249, defining what shall be de- sustain relator's motion for a change of vensuch special judge, except to ue in a cause pending in the Marion circuit court on appeal by relator from an improvement assessment made against her real estate. nominated a civil action. 5. Prohibition 5 (3)-Demand for change made in special statutory proceedings held to involve judicial action. Demand for change of judge under Burns' Ann. St. 1914, § 422, subd. 7, made in special proceedings for assessments of benefits for sewer improvements under section 8729, held to involve judicial action on part of judge, so that prohibition does not lie on denial of charge. 6. Municipal corporations 511(2)-Appeals from assessments for sewer improvements on land outside of city held governed by laws applicable to appeal from farm drainage assessments. From the complaint, it appears that on August 31, 1921, the board of public works of the city of Indianapolis, pursuant to the provisions of section 1, Acts 1909, p. 238, c. 93 (section 8729, Burns' 1914), adopted a resolution for the construction of a sewer partly within and partly without the corporate limits of the city of Indianapolis. On September 7, 1921, the board of works filed in the Marion circuit court a copy of all proceedings had in the matter of the improvement, including a list of all persons, among whom was this relator, whose property would be thereby affected. Thereafter such proceedfor sewer improvement to be conducted as other appeals, and incorporating existing laws ings were had that on April 15, 1922, the for farm drainage, held that such appeals board of assessors, appointed October 22, should be conducted under laws authorizing 1921, filed their report assessing benefits and farm drainage assessments (Burns' Ann. St. damages to the lots and land affected by the Supp. 1921, § 6143), and rules of procedure proposed improvement, which included an as In view of Burns' Ann. St. 1914, § 8729, authorizing appeals to circuit court from assessments of benefits to land outside of city (149 N.E.) Ind. 6, 3 N. E. 406; Shaw v. State (Ind. Sup.) 146 N. E. 855; Federal Cement Tile Co. v. Korff, 50 Ind. App. 608, 97 N. E. 185. sessment of benefits against the relator's 70- | vacation to grant the change. Fisk v. Patriot, acre tract of farm land without the corpo- etc., Turnpike Co., 54 Ind. 479; Krutz v. Howrate limits of the city of Indianapolis. With-ard, 70 Ind. 174; Burkett v. Holman, 104 in 15 days thereafter, relator appealed from the assessment so made against her real estate, assigning thirteen reasons why the assessment should be canceled and stricken out, and that she be awarded damages. Thereupon the regular judge of the Marion circuit court, on his own motion, vacated the bench, and the defendant, Leathers, was appointed and qualified as special judge and assumed jurisdiction of the proceedings. On April 7, 1925, relator, in the Marion circuit court, filed her affidavit and application for a change of venue from the defendant Leathers on the ground that she could not have a fair and impartial trial on account of his bias and prejudice against her. This motion and application for a change of judge was overruled on April 9, 1925, for the reason then and there stated "that a change of venue was not demandable in said cause, and that he (Leathers) could not be ousted of his jurisdiction therein," and that he would try the cause beginning April 13, 1925. The complaint also shows that the relator would be subjected to a large and useless expense in the trial of the cause, which cannot be taxed as costs, and that she has no other adequate remedy at law for the removal of the defendant who is proposing to preside at the trial. This court, upon the facts disclosed by relator's verified complaint, issued a temporary writ as prayed until its further order. Thereafter the defendants, Leathers and the City of Indianapolis, appeared and by motion to dissolve the writ challenged the complaint as upon demurrer for want of facts. Therefore the question upon the complaint is: Shall the writ be made permanent? [1] The second proviso of the statute upon which the complaint at bar rests clearly authorizes this court to issue writs of mandate to compel courts therein named to perform "any duty enjoined upon them by law," and to issue writs of prohibition confining such courts "to their respective lawful jurisdictions." However, it must be kept in mind that these writs will not issue to control judicial action, or be made to serve the purpose of an appeal or a writ of error in reviewing or reversing a judicial decision. State ex rel. Jones v. Williams, Judge, 187 Ind. 89, 118 N. E. 564. If we were to stop here there might be reason for saying that upon the filing of the affidavit of bias and prejudice it became the duty of the judge to pronounce the judgment of the law upon the theory of an express duty enjoined upon him by law, and not upon the assumption that the court lost jurisdiction to proceed further in a cause over which jurisdiction of the subject-matter, and of the person is not otherwise questioned. State ex rel. v. Wolever, 127 Ind. 306, 318, 26 N. E. 762; Turner, Sheriff, v. Conkey, 132 Ind. 248, 251, 31 N. E. 777, 17 L. R. A. 509, 32 Am. St. Rep. 251; Peters v. Koepke, 156 Ind. 35, 39, 59 N. E. 33; Stockton v. Ham, 180 Ind. 628, 102 N. E. 378, 103 N. E. 482. Appellant has called our attention to Krutz v. Howard, supra, People ex rel. v. District Court, 60 Colo. 1, 152 P. 149, State ex rel. v. Superior Court, 97 Wash. 358, 166 P. 630, L. | R. A. 1917F, 905, and other cases which seem to sustain her contention that the improper refusal of a change of venue ousted the court of jurisdiction, and hence a writ of prohibition should issue confining the court to its lawful jurisdiction. The statement in the Krutz Case on the subject of jurisdiction was made in a cause on appeal from a final judgment, and the thought therein expressed has long since been abandoned in this state. The Washington Case cited was an original action in the Supreme Court for a writ of prohibition, and in many respects the facts there were not unlike the case at bar. The writ was allowed, but the court planted its decision upon section 1028 of the Code of that state (Rem. Code 1915), which provided that a writ of prohibition "may be issued * * all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law." We have no such statute in this jurisdiction. The reasoning in that case, in support of the writ is quite persuasive, but not sufficient to warrant us in changing the rule so long followed in this state, and which must prevail in the decision of the question now under consideration. in [3] Counsel for respondent Leathers earnestly insist that a change of judge was not demandable in a cause growing out of a spe [2] Relator, it is admitted, by an unques-cial proceeding under a statute (section 8729, tioned affidavit timely filed, sought a change supra) which makes no provision therefor. of judge under subdivision 7, § 422, Burns' We may also add that the statute does not 1914 (section 412, R. S. 1881). The cause forbid a change and is silent on the subject. thus seasonably invoked for a change in- It is well settled in this jurisdiction that volved no issue of fact to be determined or the mere fact that a proceeding is a special matter calling for the exercise of judicial dis- statutory one does not necessarily preclude cretion. The language of this statute, "shall either of the parties thereto from a change change the venue" in all civil actions, is an of judge. Bass v. Elliott, 105 Ind. 517, 5 N. arbitrary mandate or duty imposed by law | E. 663; Burkett v. Holman, supra; Daniels on the court in term or the judge thereof in v. Bruce, 176 Ind. 151, 95 N. E. 569; Thorn |