*1 prosecu- surprised the who had witnesses testimony. exculpatory giving
tion in this weighed
Among factors which conflicting nature highly
decision danger that evidence and
of all the statements
impeaching evidence as substantive
sidered Under those influence. given undue held, per-
circumstances, "that containing prior state- writings
mitting go room of a witness
ments Id., Ind. at discretion."
is an abuse at 510. most of the exhib- this case
Although in offered jury room been into the
its sent evidence, one of the as substantive
at trial evidence type precisely exhibits was allowed jury was the Thomas leisure, this Court and which its
review at Additional the defendant. prejudiced
held at trial was Thomas, evidence
ly, as in trial end- conflicting. Harden's
quite reach unable to jury was
ed when the involved some
verdict, trial and the second statements of earlier
recantation exhibits tak- Thus, nature of the such that we into deliberations
en clearly erred in say the trial court
unable to prejudiced.
ruling Harden was post-conviction is affirmed. DeBRULER, C.J.,
GIVAN, PIVAR- DICKSON, JJ., concur.
NIK MOUNTS, Appellant,
David G. Indiana, Appellee.
STATE 82S01-8608-CR-714.
No.
Supreme Court
Aug. Bar- Sr., & Barnett, Barnett
George C.
Evansville,
appellant.
nett,
*2
Linley
Pearson,
E.
Atty. Gen., Michael
has investigated the case and refused or
Worden,
Gene
Deputy
Gen.,
Atty.
Indi-
failed to find an indictment.'"
anapolis,
appellee.
Thereafter, the
Indiana
amended Ind. Code
35-84-1-6,
§
effective
PIVARNIK, Justice.
provide:
to
"(b) An information is defective if:
This cause comes to us on
petition
a
to
(1) the defendant was
grand
jury
transfer
from the First District Court of
target
identified under
I.C. 35-34-2-
Appeals. The facts are not in dispute. De-
12(a)(1);
fendant-Appellant David G.
appeal-
Mounts
(2) the
alleged
offense
was identified
ed from the denial of his second motion to
on the record under 1.C. 35-34-3-12(a)(2)
dismiss the information
against
filed
as an offense that the defendant alleg-
The Court of Appeals affirmed the denial
edly committed; and
dismiss,
motion to
(8)
grand
the
jury proceeded to delib-
Appellant
petitioned for transfer
to
erate on whether
to issue an indictment,
this Court. We find the second motion
and voted not to indict the defendant for
should
dismissed,
have been
and, accord-
the offense identified on the record un-
ingly, grant
transfer,
reverse
the trial
der
35-34-1-12(a)(2).
1.C.
court and vacate
opinion
of the Court
However, if the prosecuting attorney
Appeals.
shows that
newly
there is
discovered ma-
Appellant
target
was the
grand
jury
terial evidence that
presented
was not
to
investigation
in July,
in Vanderburgh
grand
jury
grand
before the
jury's
County, concerning a
November
failure to
then the information is
Druckers,
fire at
Inc. On September 1,
defective,
not
grand
jury returned a "No Bill"
(c) Except
in section 5 of
relative to this incident. On
November
chapter,
this
an indictment or informa-
1982, an Information was filed charging
tion or a count thereof shall be dismissed
Appellant with arson and conspiracy to
upon motion when it is defective."
commit arson in connection with the No-
appeal
On
of the second
dismiss,
motion to
vember
1981 fire. At that
Appel-
the Court Appeals
properly found that
lant filed his first motion to dismiss the
(b)
sub-section
35-84-1-6 was a
§
grounds
information on the
grand
that the
Amendment, and that it was a statutory
jury had failed to indict him and the prose- provision contrary
general
to the
rule fol-
cuting attorney therefore was precluded
lowed in appeal.
from prosecuting by information. The trial
Court of
further found
this
granted
the motion to dismiss at that
provision
applicable
to the instant
time. On appeal, the Court of Appeals
case,
the trial court would have erred in
reversed in State v.
Mounts
denying Appellant's motion to dismiss. We
App., 460
tr. denied
agree the issue is whether or not
amendment to the
question
statute in
ap-
position
"Indiana's
accords with the ma- plies to the
information
jority rule as stated in 42 CJS Indict- Appellant,
alleged
where the
crime had oc-
ment
1944 as
§
Information
curred and the information had been filed
follows:
before the enactment of the amendment.
'In
hold the
absence of
apply
did
to
provi-
constitutional
sions
to the
and the
contrary,
trial court
the acts of
grand
erred in denying
a motion
respect
to
to
dismiss.
findings
indictment,
of an
binding
on the
Court of
held that Ind. Code
prosecuting attorney with respect to his
85-34-1-6(b), as amended
effective Sep-
information,
an
and an information
tember
applied
could not be
filed,
although
grand
informations filed
to its effective date
superseded
regard.
trial because
statute
In
and still
without
so,
6(b)
change procedural
doing
stated:
did not
amended
law,
changed
substantive law
Indiana
but
duties,
"As a
fix
laws which
prosecute by infor-
concerning the
establish -
-
following grand jury's
refusal
mation
among
persons,
and for
natural or other-
Appellant-Petitioner contends
indict.
wise,
character,
are substantive
*3
attorney's prior authority,
prosecuting
merely prescribe
those which
the manner
by information after a
any,
prosecute
rights
in which such
and
to indict on the same
grand jury refused
and
in
may be exercised
enforced
a court
evidence,
by the enactment of
was revoked
procedural."
the amendment.
400,
this case. myself agreement find upon dural legal restrictions right or re- the First District. sponsibility should not be Retroactive Application in the absence majority opinion legisla- upon clear relies the dis- tive intention that such should be the case. Blood, tinction made in State ex rel et al. Gibson Circuit Court 289 Ind. I would affirm the refusal of the trial between law which is to dismiss this information. procedural and substantive, law which is *4 and concludes that laws governing the
"method asserting" and time of a substan-
tive procedural. agree, goes
but Blood on in the following excerpt
to instruct that a time barrier to the exer-
cise of a right, substantive procedur- al, cannot when first erected be ret- LIZAK, Appellant Frank M. application roactive so as nullify (Defendant Below), right. compels record here us to hold that of such motion to strike did not SCHULTZ, Melvin E. Administrator reopen the issues on the merits when it the Estate of Donna Marie Lizak
was filed July on 1958. (Plaintiff 15. Schultz, deceased, Appellee Hence, Below). must follow that the issues on
the merits were closed on September No. 45S03-8608-CV-716. 1-12B, when Rule supra, became Therefore, effective. remonstrators Cooper Taylor required to file Aug. 5, 1986. their motion change for a judge within days ten September 1, from They
have not shown cause for an extension of reason of obtaining knowledge
of the cause for time, after the rule,
limited Having had run. either,
failed to do their to change judge was waived. above,
As can be seen from the the issues
were first closed on the merits to July 18, 1958, and the requiring new rule
motion for to be filed ten
days after the issues were first closed on
the merits did not become effective until
September 1958. The court concludes party could file their motion within days
ten after the effec- rule, day
tive although many more
than days expired ten since the issues