*1
proba
If there is evidence of
N.E.2d
BURKS, Plaintiff-Appellant,
Willie
support
the conclusion of the
tive value
fact, the conviction will not be set
trier of
v.
State,
(1978)
Bryant
aside.
BOLERJACK, Sheriff, Office,
Dean
Jo-
St.
Sheriff,
seph County
County,
Indiana, Defendants-Appellees.
invites
Spoonmore
us to reweigh
A 97.
No. 3-479
We decline. The uncorrobo
evidence.
Indiana,
Appeals of
Court of
testimony
rated
victim is sufficient
District.
Third
rape.
a conviction of
Riddle v.
support
State, (1980) Ind.,
necessary Lynch to sustain conviction! State, (1974) 262 Ind. rape defining at the time of Our statute was Ind. Code 35-13-4-3
this offense
is, part, as follows: relevant knowledge carnal of a
“Whoever has will ... forcibly woman her ” rape....
guilty
Here, the evidence condensed above un-
der the Facts shows forci- Statement
ble sexual intercourse the victim’s Spoonmore
will. has selected bits and
pieces which he of evidence contends favor and then uses
his innocence them to charac- testimony prosecutrix
terize the as A of the com- equivocal. reading
weak and
plete transcript inspire does not us. so adequate
There was more than evidence to Therefore, pursuant
sustain the conviction. review,
to our standard of this cause is
affirmed.
Affirmed. J.,
ROBERTSON, RATLIFF, J., P.
concur. law, present
1. For see Ind. Code 35^2-4 (Supp.1980).
149 Bend, Stephan, Robert L. plain- South for tiff-appellant. Gonderman, Artusi, Steven L.
Robert F. Offices, A. Howard Wil- Gonderman Law liams, McDonald, Patrick, Richard J. Mc- Donald, Williams, Warter Connelly, & Bend, defendants-appellees. for South GARRARD, Presiding Judge. employed jail was
Appellant Burks as a Jail in guard County at the June escaped. when four inmates On June 1975 formally charged 13th Burks was with con- spiracy jail to aid in a break.1 He was 16, but when brought April to trial on verdict, jury was to reach a unable 27, 1977, May mistrial was declared. On prosecuting attorney dismissed pending charge. Burks then sent a notice Act, Tort Claims claim under Indiana 12, 1976 seq., IC 34—4-16.5-1 et on October again on November brought then this action for dam- Burks ages alleging imprisonment, negligent prosecution. filing charges and malicious motions to Subsequently the court sustained dismiss Indiana Rules of pursuant filed Procedure, 12(B)(6) Trial Rule and entered upon for all all defendants appeal perfected. claims. This was then It challenges whether the Tort Claims Act aspects all of Burks’ claim. bars point pleading We first out that the alle- which that the sheriff was gations asserted filing charges against Burks do negligent in present independent substantive Instead, for the facts which ground relief. be mate- might proved be thereunder would establishing probable rial to cause ele- ment of either false Mitchell imprisonment, 195; (1977), Ind.App., v. Drake 360 N.E.2d prosecution, or malicious Yerkes v. Wash- Co., ington Ind.App. Inc. Mfg. 692, prosecution
The action for malicious was dismissed as to all defendants. 13th, may adopt 1. The record before us is unclear as to the June so we that date as cor- However, charges purposes exact of decision. date were filed. rect for acknowledges Burks’ motion to correct errors where been entered in favor This issue was considered and decided had Livingston City the court in v. Consol. city for the claimants’ failure to Indianapolis (1979), Ind.App., However, that decision day the 180 notice. court there held IC 34-4- granted by the was vacated on transfer provides governmental immunity 16.5-3 Court, v. Powell Supreme Delaware Co. governmental entity both a and its employ- (1979), Ind., this latter *3 acting scope employ- ees within the of their No question. the opinion did not consider judicial ment for the initiation of proceed- appears other decision to have considered properly The trial court ings.2 dismissed new statute proper application the of the this claim since it cannot be contended that under these circumstances. scope the sheriff was not within the of his 5(a) It is clear that in enacting § employment instituting charge in the legislature protect statute the intended to a against Burks. in- governmental employee separate from a Concerning remaining Burks’ claim of injured party dividual suit where the either imprisonment false the issues concern his governmen- effected a settlement with the give failure to notice of claim before Octo- injuries, pros- or where he entity tal for his 12, 1976. provides ber IC 34-4-16.5-7 that the mer- judgment ecuted his claim to a on against political a claim is barred a subdivi- entity. More- against governmental its the sion unless notice of the claim is filed with over, language the of the section does bare the governing body of the subdivision with- based appear to create a distinction (180) in eighty days one hundred after the in favor of the upon whether a loss occurs. upon governmental entity was rendered a Livingston, supra,
In
the court held
fail-
upon
consideration of the merits or
the
in
that
the loss
a claim for false arrest or
give
timely
ure of the claimant to
the
notice
imprisonment
upon
occurs
the
of
date
required by IC 34-4-16.5-7.
Accordingly,
the
arrest.
Burks’ claim
not, however, be
The section should
(and Office,
against
county
the
in
construed
isolation.
It must be con
Sheriff)
County
by
was barred
his failure to
strued in
sections of
relation to the other
give
statutory
notice within
days
legislative
the act in an effort to follow the
13, 1975,
after June
and the court
give
spirit
intent and
effect
to the
and
dismissed the claim as to those defendants.
purpose
Hwy.
of
the statute.
Indiana
however,
additionally argues,
Burks
that
690,
(1973),
Comm. White
259 Ind.
this should
no bar to his claim against
be
550;
(1972),
Thompson Thompson
capacity.
the sheriff in his individual
266,
259 Ind.
I5I HOFFMAN, J., preclude alleged the act was held to concurs. tortfeasor-employee asserting from lack of STATON, J., separate dissents and files notice to the governmental entity as a de- opinion. (1977), Geyer City Logansport fense. of 333, 337;
267 Ind. England STATON, Judge, dissenting. (7th 1969), v. City of Richmond Cir. F.2d 1156. I dissent. Only allegations conduct 5(b)
It should also be noted that section
which
would amount to a waiver
the 180
purports to
governmental entity
afford the
day statutory
or which would
notice
pay
discretion to
or
settlement
estoppel
asserting
amount to an
the no-
employee
where the action oc-
negate
tice defense could
the rationale of
employment
curred in the
scope Judge Lowdermilk in Delaware Co. v. Pow-
governor
governing
or
the case
body, as
ell
Justice
be,
may
payment
determines that
“is in the
Pivarnik,
Supreme
writing for the
Court
*4
governmental entity.”3
best interest of the
Delaware
Co.
Powell
Finally,
plain
we note that while the
lan-
190, clearly
N.E.2d
delineated the rationale
guage
5(a)
of section
applied
could be
to bar
being granted:
for transfer
a claim against
governmental employee
a
“When acts and conduct of the defendant
individually
a judgment
where
had been
agents
or his
have established that
the
entered in favor
political
of the
subdivision
purposes of the statute have been satis-
grounds
on the
comply
of failure to
with
fied, these acts and conduct could consti-
the
requirements,
notice
the section has no
estop-
tute a waiver of notice or create an
apparent
application
circumstances
pel.”
employee
where the
is sued but no action
was
against
governmental
commenced
the
further
misplaced. plaintiff’s in Geyer, action
supra, was filed prior to the enactment 4-16.5-5(a) IC and would have little 34—
bearing on the issue before this I Court.
would affirm the judgment of the trial
court. HAMMOND, Indiana,
CITY OF
Appellant-Defendant,
STATE Indiana on relation of Ronald
JEFFERSON, Appellee-Plaintiff.
No. 3-879A237. *5 Indiana, of Appeals
Court
Fourth District.
Sept.
Abrahamson, Tanasijevich, Reed & Rob- Hammond, Berger, appellant-de- ert G. for fendant. Bradley, Gary, appellee-
Hilbert L. for plaintiff.
MILLER, Judge. presents appeal by City This action an superior of Hammond from a court order reversing earlier determination Hammond Board of Public Works and Safe-