State v. Grow

263 N.E.2d 277, 255 Ind. 183, 1970 Ind. LEXIS 466

• Court: Indiana Supreme Court
• Decided: November 4, 1970
• Docket: 769S155
• Status: Published

Opinions

Per Curiam

This is an appeal taken by the Attorney General of the State of Indiana on behalf of the State from a judgment dismissing a criminal action instituted by the State of Indiana by affidavit in two counts charging the appellee with assault and battery with intent to gratify sexual desires, Count One, and assault and battery alone in Count Two.

The only issue in this appeal relates to the appellant’s contention that the appellee was not entitled to be discharged under Rule 1-4D for delay in bringing the defendant to trial. Rule 1-4D(3) provides that no person shall be held by recognizance without trial for a period of more than one year from the date upon which the recognizance was taken except as provided in paragraph (1) of the same rule. Paragraph (1) of Rule 1-4D reads as follows:

“Defendant in Jail—No defendant shall be detained in jail on a charge, without a trial, for a continuous period embracing more than six [6] months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge (which ever is later) ; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last mentioned circumstances, the prosecuting attorney shall make such statement in a motion for continuance not later than ten [10] days prior to the date set for trial, or if such motion is filed less than ten [10] days prior to trial, the prosecuting attorney shall show additionally that the delay in filing the motion was not the fault of the prosecutor.”

Essentially, the argument is made that the granting of the motion for a change of venue on the request of the defendant was not a delay “caused by his act.” The facts are essentially as follows:

Appellee posted his recognizance on January 5, 1968, and was arraigned and pleaded not guilty on February 28, 1968. On March 8, 1968, he moved for a change of venue from the judge. Although two panels were named by the presiding judge, in each case the nominee failed to qualify. As a result, the Supreme Court designated a special judge who qualified on September 7, 1968. The cause was set for trial on the prosecutor’s motion on November 11, 1968, and again on the prosecutor’s motion on January 23, 1969. On January 31, 1969, appellee filed his verified motion for a discharge for delay in trial, alleging that no continuance was had on his own motion and that no trial delay was caused by his act. To that motion the prosecuting attorney filed an affidavit stating that defendant’s attorney would not consent or agree to try the case on November 11th, since it was a holiday.

The evidence is undisputed that the defendant filed no formal motion for a continuance. Our only consideration in this case must be given to a proper interpretation of the wording of the rule involved when it states the defendant shall not be entitled to count the time to his own credit for the one-year period involved when “the delay was caused by his act.” There is nothing in this phraseology which qualifies it with respect to whether or not the act causing the delay was justifiable or meritorious. This is demonstrated in the case of State ex rel. Demers v. Miami Circuit Court (1968), 249 Ind. 616, 233 N. E. 2d 777, in which case the appellant was indicted for second degree murder and sought discharge, claiming the time the case was delayed by a plea of temporary insanity and the procedure involved in connection therewith should not be charged against her. This Court held to the contrary, that the delay was caused by her act.

There are, however, cases directly on point by this Court that fix the rule in this jurisdiction. In Colglazier v. State (1953), 231 Ind. 571, 575, 110 N. E. 2d 2, 4, this Court had occasion to say:

“Appellant caused a delay in his trial ... by his act of filing a motion for change of venue from the county and for a change of judge. Such motions necessarily delay the trial of a case.” (Underscoring added).

In Wedmore v. State (1957), 237 Ind. 212, 216, 143 N. E. 2d 649, 651, this Court further said:

“Appellant, by his request for a change of judge, set in motion the chain of events which caused the delay in his trial. Hence he is not entitled to a discharge under § 9-1403, sufra”

More recently this Court stated in Norris v. State (1968), 251 Ind. 155, 240 N. E. 2d 45, that where appellant had inaugurated the change of venue proceedings voluntarily, he may not be heard to say that this delay forces his discharge.

Where a change of venue from the county has been granted, we have held the time begins to run anew when the court to which the venue is changed receives the transcript and original papers and assumes jurisdiction. State v. Mabrey (1927), 199 Ind. 276, 157 N. E. 97. It follows that the time begins to run anew where a change of venue is taken from a judge when the new judge qualifies and assumes jurisdiction. Norris v. State, supra.

In this case one year had not elapsed when the motion for discharge was granted on January 31, 1969.

The judgment of dismissal by the trial court is reversed and the cause is remanded with directions to reinstate the case for trial.

Hunter, C.J., concurs; Jackson, J., dissents with opinion; Givan and DeBruler, JJ., not participating.