*1 simрly relating Jones and Godines were saw, namely empty they a dark and
what doing of road. The defendant was
stretch
the same when he testified that his head- simply relating
lights were on. He was saw, namely portion an illuminated
what directly in front of
of the strеet his car. negligence of this claim made nature necessary plaintiff prove
it Jones negligent
that defendant was and that such
negligence proximate was the cause of the
accident, during her case in chief. Her
testimony and that of Godines satisfied burden, pleaded as she had that de- operating his car
fendant was without the on, speed
lights and at a which was too
great testimony conditions. for the carry jury.
was sufficient the case to the plaintiff's
It was not burden
prove contributory that she was free from 9.1(A).
negligence. Trial Rule To the ex- plaintiff's negli-
tent that the issue of the
gence raised when she elicited the testimony
defendant's that he had been on,
operating lights his car her
testimony and that of Godines was suffi- support
cient the inference on,
lights required were indeed not judgment
denial of the motion for on the
evidence. I therefore vote to reverse the
judgment and remand for a new trial Indiana,
STATE of ex rel. Robert
Q'DONNELL, Relator,
v.
The CASS and the SUPERIOR COURT Brown, Judge
Honorable Mark Y. as
Thereof, Respondents.
No. 584S169.
Supreme Court of Indiana.
Sept.
210
Date Activity Court states it will set trial 1, 1984 February April May, either or 1984. February 3, 1984 Objection Defеndant files Trial Date and Demand for Speedy Trial. February 7, jury 1984 Six-member trial set for May 1, 1984, at 9:30 a. m. Objection Defendant's Trial Date and Demаnd for Speedy Trial filed herein (HI) February 8, 1984, de- nied. 7, March 1984 Defendant files a Motion to Austen, Walker, H. James Starr & Aus- Dismiss. ten, Logansport, for relator. 24, April 1984 Court denies Motion to Dis- Pearson, Linley Gen., Atty. Indianapo- E. miss. lis, Russell, Sp. Atty., Richard L. Pros. 29th sought charges Dist., Kokomo, by dismiss the respondents. Judicial for invoking 4(C) Ind.R.Cr.P. which states: GIVAN, "(C) Discharged. Defendant per- Chief Justice. No recognizance son shall be held on or oth- 9, 1984, May On this Court rela- charge erwise answer a criminal for a tor's Writ of Mandamus and period aggregate embracing more Writ of Prohibition. These writs ordered than one from the date the criminal respondents charges to dismiss filed charge against filed, such defendant is or against relator under the Cause Numbers from the date of his arrest on such prohibited SS88-11 and SS83-12 and fur- later; charge, except whichever is whеre proceedings charges. ther on these This motion, a continuance was had on his opinion permanent is to make those writs. act, by was caused his or where charged by way sepa- Relator was of two there was not try sufficient time to rate informаtions with two violations of the during such congestion because of prohibiting operation of a vehi- calendar; however, рrovided, of the court following cle while intoxicated. The time- cireumstance, the last-mentioned table is a chronicle оf the relevant court prosecuting attorney shall file a time- activity. ly motion for continuance as under subdi- - (A) vision of this rule. Any defendant so Activity Date shall, motion, held discharged." arrested for 1982 Defendant 24, December charges later filed as Cause Under the State was under a Number S$S88-11. bring relator to by February Defendant arrested 1983 7, February 23, 1984, any portion unless any delay, charges filed as later Causе year, within that is attributable to the acts S$S88-12. Number of the relator. See also Ind.R.Cr.P. filed in Cause Informations 1988 23, February SS§88-11 and Numbers Respondents сlaim April SS83-12. 19, 1988, to the date of the omnibus hear 19, April 1983 continued Causes by ing is to be They attributed to the relator. ment of maintain when a defеndant has either hearing continued 1983 Omnibus 21, September sought to a State continuance or 21, to November Court acquiesced his actions has to a continuance 1983. then the chargeable is to the defend 21, hearing held. November 1983 Omnibus ant. Indiana case supports posi law this states that trial date Court State, (1974) will be set. 334, tion. See Holt v. 262 Ind. 362; State, (1975) 316 N.E.2d Moreno v. to take 1983 Notice deposition. Nоvember
211 675; days shall not be attributed to the Ford v. those Ind.App. 336 N.E.2d 166 purposes defendant for the of Ind.R.COr.P. State, (1975) Ind.App. 382 N.E.2d relator did A in that situation can defendant Thus, respon is continuance. assume that when a trial date final- to the conform to the limitations of ly mid-July to set it will argue they have until dents rule. If the court then sets to trial. *3 of the a de- beyond the boundaries at distinguishes the case bar notify duty has a to the court of its fendant in his by noting rule general the from did, bar, In at error. the case established no trial date had been case fact, purpose The of notify so the court. He agreed to the continuance. when only guaranteed by can the the rule provides setting of a trial date argues the at discharge of relator the case bar. a defendant with benchmark the gauge his decision of whether he can which granted May on writs maintains, He agree to to the continuance. hereby permanent. are mаde prior in the absence of a trial ment, can assume the a defendant HUNTER, PIVARNIK, and PRENTICE comply the rule. will with State JJ., concur. is under no A dеfendant to ensure his an affirmative action DeBRULER, J., separate take dissents with brought the time being opinion. to trial within However, a defend
guidelines of the rule. Justice, DeBRULER, dissenting. duty to alert the court ant does have a has established be when a trial date been аbove, recited According to the record as proscribed limits of the rule. As yond the by agreement "continued the causes were may noted in Moreno a defendant the court My parties" of the the into an continu not lure State general con- experience is that such judicial beyond the limitations ance which extends by agreement of the tinuances of a cause right of dis thе rule and then a of reflect their free choice parties typically addition, a charge under the rule. In de fi- of the cаuse towards that advancement agree obligation under no fendant is stopped until one of the nal resolution be He has the any sought continuance. State it. The cessa- parties or the court restarts right and to force the to refuse activity and sаnctioned tion of occasioned the to either to trial within State agreement generally causes by the for which time limits or sеek a continuance trial, bringing the cause to within recog responsible. Lastly, we it alone is Rule of Criminal intendment purpose nize the of the rule is to ensure one extend the should discharge defend early trials and not to trial in the same bringing the accused to ants. his motion for continu- manner as would Rule trial. Criminal ance of it was delay here since the There is an actual in the action of the State which resulted set when the date had not been omnibus simple matter. long delay relatively in this agreement and continuanсe notify court within two Relator did completion of deadlines for thus various setting trial date that days of the of a set. Ind.Code pretrial procedures were not full rule. This was a beyond date was § delays a task party When a running 35-36-8-1. prior to the of three weeks trial can completed before a and the which must be provided and the court often does place, party can and with the take ample time to conform State trial, setting of the case for believe he requirements of the statute. We that, Thаt is the through the trial itself. required of a defendant. has done all that is agreed to a continu a defendant has the cause When a continuance of effect of date, agreement of the setting any prior to the ance