Appellant was charged with forty-five counts, all stemming from sexually related attacks on several women. The State also alleged that appellant was an habitual offender. The sentences ranged from one hundred eighty (180) days to fifty (50) years on twenty of the forty-five charges. It was further ordered by the trial court thаt the sentences imposed on the counts involving separate victims "shall run and be served consecutively." We reverse.
*1046 Following the termination of the сase-in-chief, the habitual offender verdict forms were erroneously sent to the jury room. Appellant raises this issue as his first assignment of error in the trial court; hоwever, we would point out that the State dismissed the habitual offender charge and appellant was not sentenced thereon. Therefore no harm came from the failure of the trial court to bifurcate the hearing or from the sending of the habitual offender verdict forms to the jury.
Appellant also claims the trial court erred in allowing the State to amend the information on the first day of trial. The prosecutor was permitted to amend the charge frоm "in or near Marshall County" to "in and near Marshall County" and in several of the various counts to delete the words "or near". It is true, as claimed by appellant, that the State cannot amend a charge at such a late date if the amendment results in prejudice to the defendant. However, in the case at bar, we see no possible prejudice. Where a crime commences in one county and is continued into adjoining counties, then the charge mаy be filed in any of the involved counties. State v. Carrier (1956),
Appellant claims the trial court erred in admitting State's Exhibit No. 1, a knife, into evidence. The police obtained the knife during a search of appellant's automobile after obtaining a search warrant. The affidavit used to obtain the search warrant stated that it wаs being obtained in order to search appellant's vehicle for evidence that one of the victims had been a passenger therein. It is appellant's position that since the affidavit did not specifically state that the police were searching for the knife it was improper to place it into evidence. He further contends that the affidavit used to acquire the search warrant was defective.
We do not agree with his contention. The affidavit stated that appellant's vehicle was the one in which appellant confined and transported one of the victims. The affidavit further statеd that the vehicle had been impounded. Although the affidavit in question did not mention the possibility of the presence of the knife in the vehicle, such a statemеnt was not nee-essary in view of the facts involved. The automobile could have been searched by the police without the warrant, first because of the fact that the police had probable cause to believe the crime had been committed in the automobile, Cochran v. State (1981), Ind.Apр.,
We have covered the foregoing questions because it is perceived they will occur again upon rеtrial. The other questions raised in appellant's brief will not be discussed with the exception of the final question which must result in the reversal of this case.
Appеllant claims the trial court erred in granting the State's motion to separate witnesses over his objection after the presentation of the State's case without separation of witnesses. When the State made the motion for separation of appellant's witnesses, appellant's counsеl objected, noting that during the presentation of the State's case three to four potential witnesses were in the courtroom during the testimony of othеr witnesses. He pointed out that there had been no previous motion to separate and that to separate the witnesses following the presentation of the State's *1047 case would place appellant in an unconstitutionally disadvantaged position.
The State argues that the motion to sеparate was proper because the defendant had not furnished the State with a list of his witnesses until the trial had begun. We fail to see what that has to do with thе issue of the separation of the witnesses. It is true that the question of separation of witnesses is wholly within the discretion of the trial court. Many cases havе been decided in Indiana on this subject. See Romary v. State (1945),
"Any party may orally move, before any of the witnesses have testified, that the witnesses be separated."
However, there is no citation to support this statement.
In Brown v. State (1971),
We find no case that goes further than this in allowing witnesses to hear the facts of the case prior to their testimony. It should be noted that in Brown all the witnesses were subjeсt to the same eventual ruling by the court. In the case at bar it was obvious appellant was willing to proceed without separation of witnesses. He hаd every right to presume the State was proceeding on the same theory when they chose to commence presenting their case without a sеparation. We believe appellant's position was well taken when he argued to the trial court that his witnesses would be placed in a disadvantageous position with relation to the State's witnesses, who had been allowed to remain in court during the testimony of each, and that the jury would then observe thаt appellant's witnesses were not afforded the same freedom. It is only logical to assume that the jury might well deduce from such treat ment of the witnesses that the defense witnesses were of less credibility and that the court was protecting against prefabrication by those witnesses by forcing their separation.
Although we find no direct authority for the position we take here today, we hold that the constitutional mandate that a defendant is entitled to a fair trial dictates that we find the trial court's grant-img of the motion to separate following the close of the State's case was an abuse of his discretion. We wholly subscribe to the unsupported statement in Wiltrout above quoted and now officially hold that henceforth in Indiana when there is to be a separation of witnesses the motion must be made and ruled upon before any witnesses have testified in the cause.
The trial court is reversed and a new trial ordered for appellant.