*1 preponderance prove by appellant had failed to comprehension sufficient that he did not evidence against him action nature of the criminal understand the certi- has to make his defense. determination Such fied to us. being pending before us no further issues
There
denying appellant’s
appeal,
of the trial court
the decision
supplementary
motion to correct errors
second belated
affirmed;
judgment
as is the
motion to correct errors
belated
conviction.
Prentice,
concur.
C.J., Givan,
JJ.,
Arterburn,
Hunter and
Note.—Reported at
Leon of Indiana. v. August Rehearing July 1974.] denied Filed 272S15.
[No. *2 Waggoner, appellants. Vance of Rushville, M. for Sendak, Attorney General, Theodore L. Diamond, Darrel K.
Deputy Attorney General, appellee. for appeal by J. This isan Leon Johnson and Arthur
Hunter, Clough inflicting from a B. conviction for injury in com- robbery. mission of Trial jury was appellants were imprisonment. to sentenced life A motion to correct errors timely was filed and appeal overruled. This followed.
Although this involves a substantially now amended rule, criminal clearly applicable is to that amended 4(C), rule. CR. as amended this Court 17, on December 1973, February 1, 1974, effective reads as follows: discharged. person No recog- shall be held on “Defendant nizance or otherwise to answer a charge criminal a for
period aggregate embracing year more than one from criminal the date the such defendant is filed, or from the of his date arrest on such charge, which- Any ever is discharged.” shall, later. defendant so held motion, be allegation Appellants’ major of error they is that en- were discharge pursuant titled 4(A). 4(A)—DIS- to to CR. CR. DELAY
CHARGE FOR IN CRIMINAL TRIALS—read in pertinent part prior as follows to the aforementioned amend- ment :
inal on a was caused time to date cept of the court calendar bracing more than six “Defendant where charge against charge, his arrest on such try him continuance without jail. his during act, No such .”.. [6] defendant shall trial, or such was defendant charge (whichever (Emphasis added.) months where there was not sufficient had on motion, period a continuous from his because of filed, the date detained or or the period later) ; congestion crim- delay em- jail ex- discharge was 4(A) whether a In order determine CR. case, record applicable must look to the in the instant we to the facts most favorable State. those 1969, 10, appellants arrested and On were October charged Munic- 11,1969, with in Marion October were preliminary ipal Upon appellants, the motion Court. April hearing continued November 1969. was Court, Division in Marion Criminal an affidavit was filed appellants charging with and armed Two, both discharge pursuant bery. 4(A) on Appellants moved CR. July 23, May 25, which motion was overruled Marion Thereafter, 1970, an affidavit filed in on June charging appellants in- both Criminal Court jury commission of (initiated by appellants), of continuances
After series in- 14, 1970, robbery April 5, 1970, and the June August flicting nolled on convicted, filed *3 affidavit, the were which charging August 21,1970, robbery them and on with robbery. then the commission cause was in The County. February 22, 1971, appellants to Rush venued discharge to motion which was filed their overruled. required 4(A) defendants, that criminal were who CR. charge charge, brought jail a to in on trial on that detained began period. a six-month The run within time to charge from the date was filed or either the date the arrest, If, however, the whichever was later. a defendant, the acts of the six months caused the delay was (1971), v. began Summerlin 256 run anew. to Ind. 652. (1970), 411; 183, 255 State v. Grow Ind. N.E.2d appellants bar, case at moved con the the to 277. In N.E.2d hearing Hence preliminary November tinue the given 4(A) according CR. construction began The to run from the latter period date. six-month attention, our period upon must focus there. critical which we 1970, (the fore, 13, 1969, May 25, between November is discharge). appellants’ date of motion period May 25, 13, 1969, November between clearly During period, in excess six months.
appellants continuously jail. Therefore, in we detained appellants’ discharge, hold that the in Marion motion for filed Court, Two, May 25, 1970, Criminal on Division should discharge charge sustained and ordered bery pending. then discharge
This Court has that a to further held is a bar prosecution charge. on that Ind. (1972), Small v. 287 N.E.2d affidavit 334. The
appellants charges in this both were convicted robbery inflicting injury commission robbery. appellants’ discharge, Since filed motion to May pending sustained, should have been But should thereafter have been barred. presented ultimate issue to this Court is whether inflicting injury commission is also thereafter judge If barred. such barred, Rush by overruling appellants’ Court Circuit erred discharge motion say, February 22, filed 1971. That is to appellants’ discharge motion to should have been treated as motion to granted.1 dismiss and should have been
Inflicting injury robbery, commission defini- tion, presupposes attempted commission or an
robbery. fact, charging August (filed affidavit both 1970), counts the commission of That affidavit reads pertinent part follows: as
“COUNT ONE unlawfully, feloniously, then and did there “[Defendants] *4 forcibly by fear, putting and violence FREDA MAL1N in person possession and take the said FREDA of fact, (Clough) one of the filed a motion to dismiss discharge. including a motion to MALIN, money HUN- then and there the value ONE of of money, prop- ($100.00) DRED DOLLARS lawful lawfully erty then said FREDA MALIN and there property possession held her then and there the and was doing RUSSELL, as THE GLASS of FRONT business WILLIAM contrary being TAVERN, then and there provided, and of in such made and form the statute Indiana. peace dignity and State TWO “COUNT aforesaid, aforesaid, upon further his oath affiant “The JOHNSON, says that FARLOW and LEON FRANK L. A.D., 1969, at OCTOBER, and day of or the 3rd about Indiana, then and County of and the did the there Marion put- feloniously, unlawfully, forcibly violence and person fear, and and ting FREDA MALIN in take from MALIN, money, then possession said FREDA DOLLARS HUNDRED the value ONE there money FREDA money, which the said ($100.00), in lawful and possession lawfully her held in there and MALIN then RUSSELL, property of WILLIAM there the then and and TAVERN, FRONT doing as THE GLASS business while JOHNSON, and LEON L. FARLOW FRANK said and committing did then engaged aforesaid physical injury, feloniously unlawfully and there to-wit: wound inflict Fredericksen, upon of Jems and the chest a pistol said in the hands of the there held then awith FARLOW, then L. FRANK LEON JOHNSON added.) (Emphasis being____”
there discharge only the notion that a bars seizes The State argument the same offense. The prosecution for then further illogical inflicting conclusion that the offense proceeds commission and the offense in the barring purposes prosecu- separable for further bery are totally premise is untenable. tion. Such reading aforequotec statute and the Our inescapably leads us to the conclusion that of- affidavit robbery (or attempted robbery)
fense of an is ai inextricable, indispensable element of o the offense inflicting injury Ii commission of order to injury, convict a defendant for it abso lutely essential that the establish either commissioi *5 bar, robbery. if attempted the case or an In of a any prosecution further on the State is barred from the charge, possibly prove bery can it its how estopped Therefore, judgment, to the State was case? our charge appellants inflicting injury in the commission the with robbery. of a by sought 4(A) to circumvent CR. State case the run, period
charging appellants, after the six-month had the disguised by cloak essentially the the same with offense the important that to note the State It is semantics. necessary to pertinent information all outset had the inflicting injury in the appellants offense of with the the every opportunity robbery. The had commission not appellants, and, therefore, to we should so the penalize appellants to for the State’s failure exercise the judgment. sound contrary represent believe that would
We recently vitality to the continued serious threat the 4(C). opens dilatory un- It amended CR. the door seriously prosecutorial undermines conscionable tactics and games Playing rights of accused. cat and the mouse dangle allowing them criminal defendants with string For proverbial not be countenanced this Court. will reasons, 4(A) reluctantly apply we former CR. these discharged. appellants order Such a at bar and meaning necessary give substance to result Judgment appellants hereby ordered reversed and rule. discharged. concur; Givan, J., JJ., with Prentice,
DeBruler dissents joins. opinion Arterburn, C.J., in which Opinion
Dissenting opinion majority in this case. Givan, I dissent from J. appel- position that majority opinion takes the The from Novem- jail held in under lants were However, does record May until ber regard. support majority opinion Novem- in this The appellants majority day ber date used grand grand jury. jury over to returned were bound appellants April indictments of 1970 but robbery. other not related to the April 14, 1970, charging appel- On filed affidavits robbery. lants and armed charging in- On June filed an affidavit flicting injuries commission day trial, moved for immediate and trial However, was set for June motion was with- *6 by appellants drawn the and the trial date was canceled. 18, 1970, requested appellants On June continuance the arraignment charge injury of inflicting their on the of an robbery. in commission of a the July appellants
On the the moved for a continuance on charge robbery robbery. of and armed
July 30, 1970, Appellant the Johnson moved for a con- charge inflicting tinuance as to injury the of com- an in the mission of a August 21, charges 1970, both were nolled. On the
date the filed affidavit under the which the conviction now before this Court was had. pointed
As out majority the opinion, the the time for operation begins 4(A) Rule CR. to run either the from date the was arrest, filed or the date of the which- ever is later. 1969, apparent 13,
It is from this record that on November opinion begins majority the date from which count operation (A), appellants time for Rule CR. custody suspicion having on were committed several crimes, including during the crimes robbery committed Although they Front Glass Tavern. bound were over grand jury 13, 1969, on November re- indictments grand jury turned them did not include offenses at committed Front Glass Tavern. The first charged appellants having try jurisdiction a court were them crimes at committed Front Tavern Glass Anything 5, on may June occurred County Municipal Marion Court November appellants grand jury the time the were bound to the over which was related to the Glass Front robbery Tavern could only charge. preliminary have been a Municipal Court jurisdiction robbery has no preliminary case. A in that court period would not start running of time so require discharge as to under Rule CR. ex rel. 4. See State Hunter v. Juvenile Court County Marion (1974), 261 Ind. 308 N.E.2d Therefore, Ind. Dec. 293. the time majority opinion used between November 13, May 25, 1970, clearly error, since charged with the Front the Glass Tavern April 14, until Therefore, ruling Marion Court, Criminal May Division 25, 1970, denying appel- discharge lants’ motion to was not in However, error. even if argument we would assume for the sake of that they were discharge entitled to a operation under the of the rule as robbery, and armed abundantly it is clear record that the an commission subject never was to dismis- *7 sal under the rule. Kirk (1971), v. State 480, 256 Ind. 269 751, N.E.2d 25 Ind. Dec. 630. The an injury of a robbery in the commission was not filed until 5, From that until discharge 1970. June the motion for delays rule, chargeable under incurred are appellants. acknowledge
Appellants the existence of the Kirk case. they argue However, that Kirk is in error in that as both out arose of the same criminal transaction filing merged the later became in the earlier charge. support argument they In this cited the doctrine estoppel, of collateral as set out Supreme the United States 172 v. 1189, 436, (1970), 90 Ashe Swenson U.S. S.Ct. 397
Court v. Washington 469, (1971), U.S. Harris 404 25 L.Ed.2d cases 183, L.Ed.2d 212. The Court in those 92 30 S.Ct. estoppel of collateral is embodied that doctrine held guarantee against In jeopardy. Amendment double Fifth principle set out as Ashe the was follows: “ been deter- hen an of ultimate fact has once issue [W] cannot judgment, and final between the at that issue a valid mined again litigated parties future in a be 397 U.S. lawsuit.” language Supreme apparent used Court
It becomes applicable estoppel not there has collateral that where adjudication on the merits the case. an never been brought opinion, dissenting out this As later will inflicting an of armed crime crime perpetration separate are two although arising and, distinct crimes out of the same trans- action, disposition necessarily of one not sub- does affect prosecution sequent other.
Therefore, ap- estoppel the doctrine collateral is not plicable to the facts this case. argue
Appellants
they
subjected
that
to double
argument
jeopardy.
Jeopardy
This
without
does
merit.
is sworn. Gullett v. jury
(1953),
not attach until the
In State v. Soucie N.E.2d Ind. properly discharge held that this Court of one accused of ground prosecute crime State had failed to jeopardy, time allowed was not former but was within the prosecution further for the identical How bar offense. bar, ever, in at the offenses case identical. presented at bar similar the case A situation (1951), of Ford v. State Ind. N.E.2d 655. beginning page 520, case, Court said: *8 argue “Appellant seems to brief that in his appellant claiming same If is that transaction. applied, ex transaction’ test should this test was be ‘same 282; repudiated (1879), pressly Elder 65 Ind. State v. v. supra. applied State, test to on the issue Foran The be for the jeopardy is of former same or the second whether charged by prior affidavit crime a identical as placed upon a indictment defendant has been v. State, applying supra, Foran jeopardy. As stated in whether, test, if what is ‘identity offense’ the test is proved under the indictment had been out in the second set words, In other first, there could have conviction. convic necessary to secure the same be would tion evidence prosecution ?” before us as in the former in the case now (1955), Ind. 130 N.E.2d Woods v. beginning page this Court at stated: of- facts constitute two or “But more when necessarily in- fences, not the lesser offence is wherein necessary con- greater, facts and when the
volved vict necessarily not prosecution would on a second first, prosecution be will not on the then the first convicted a mitted although second, offences both com- bar same act.” the same defining crimes statute injury in the commission of a reads as follows: person any takes from of another article “Whoever putting fear, guilty or value violence imprisoned than bery, conviction less and on shall be twenty-five years than and any nor more years, ten [10] [25] of incapable and rendered disfranchised be profit any period. of trust or Who- office determinate any upon any physical injury wound or other inflicts ever dirk, stiletto, club, firearm, bludgeon, billy, any person with dangerous deadly blackjack, any weapon or other or or engaged in the commission robbery, or while instrument robbery, shall, to commit a attempting convic- while prison for imprisoned in the tion, state life. [Acts be 35-13-4-6, p. IC IND. §6, 447.]” BURNS ANN. ch. Repl., STAT., 10-4101. § reading clearly could statute reveals A of an injury, the infliction thus committed without be hand, only convicted of other person could person attempted robbery, if a commit suc- but did not complete act, doing cessfully but in so inflicted an *9 victim, perpetrator an guilty intended the of would be inflicting injury attempting robbery the crime of an in al- a though he guilty had not of by every
It
clear
test that
neces-
thus becomes
one
is
person
of
sarily
included
the
A
an
offense
could
other.
guilty of
See
found
either without
inclusion
the other.
(1969),
Hobbs
cases in has which Court held that where the language or affidavit its indictment offense includes one another, separate cannot penalties within the Court assess conviction, greater only on each but must for sentence (1957), Mims offense. v. State See Ind. N.E.2d principle of is 878. This law not to be confused with ability to prose- State’s choose of such offenses it will principle nor preclude cute does this of law a trier of fact finding particular from in a case that the State failed has proof to sustain burden of its as to charge, proven one but has beyond a reasonable doubt the other as defined statute. also Kokenes v. (1938), See State 476, 479, 213 Ind. N.E.2d argue further
Appellants State’s action violated rights speedy process guaranteed to trial their and due as Constitution the Indiana United States Constitution. cited are The cases neither within the factual situation of the Appellants nor durational case at bar. appear significance sort of attach some to the fact that pertinent necessary had all the information them offense in the commission of a arrest, their thereby imply that by filing penalizing them was somehow at a later time. charges in filing required
All that the State in statute any within the criminal those file limitations. argument nor majority opinion not follow does instead, appellants’ brief, after but
the authorities forth set stating illogical argument proceeds appellee] to the then “The [of com- inflicting injury in the conclusion that the offense sep- are
mission of rable the offense barring prosecution. purposes Such for further untenable,” totally premise is philosophic author- dissertation merely enters into without which, effect, ity, holds conclusion and comes two or crimes are committed if more first time *10 of every occurrence, one and of same each course charged prosecuted crimes so committed must period of time allowed CR. Rule within prosecution. they barred or forever will be rule purpose of extension This is an irrational By adoption. contemplated of its at the time never which was prin- adopted majority first time has so limitations away with statute ciple does of law which and the concerning crime, of which any the commission logical A known authorities. perpetrators of which are any apply to reasoning would in this case of the extension perpetrators of the crime and where situation saying majority in effect to authorities. The known were crime, of the commission knew authorities that if the charged it, therefore the court therefore, they, should have charged purposes for the it was assume will operation of Rule CR. 4. prosecuting bar, police authorities and the the case good exist- dispatch faith under acted with
authorities a sudden irra- ing this Court Indiana. For make laws authority result departure tional benefit of without discharge persons convicted of an absolute who have been robbery, perpetration personal injury abiding deprives process law citizens of this state due discharges would convicted felons trial law whose delays occurred sooner it not for much numerous occurring request. at their prior
I follow as it would the law has existed in Indiana aifirm this decision would the decision of trial court. Arterburn, C.J., concurs.
Note.—Reported at