*1 v. Grow. of Indiana State rehearing 4, 1970. petition filed.] No 769S155. Filed November [No. Thomp- Sendak, Attorney General, F. Theodore L. William Deputies Hassett, Attorney General, son Robert F. appellant. Morocco, Sammons, Bowen, Myers,

Robinson & Northam Indianapolis, appellee. Soards, of & appeal Attorney is an

Per Curiam This taken Gen of Indiana on eral of State behalf the State from dismissing judgment a criminal action instituted the State charging appellee affidavit in two counts of Indiana battery gratify desires, with intent to sexual with assault battery One, assault and alone in Count Count Two. only appeal appellant’s con- issue relates to tention that entitled to be bringing under Rule 1-4D the defendant to trial. recog- 1-4D(3) provides person Rule shall be no held *2 period nizance without trial for a more than from one recognizance except the date which was taken provided paragraph (1) Paragraph (1) rule. same of Rule 1-4D as follows: reads

make such statement last than ten cient time gestion the date jail delay except criminal such embracing delay cutor.” “Defendant mentioned prosecuting attorney on a motion is was caused where a continuance of the court of his filing the charge charge, ^[10] more try circumstances, in Jail—No arrest filed days prior against than by him without motion calendar; provided, less than ten his in a motion for on such during six act, such shall was to the date ^[6] defendant was had trial, or where charge (which such defendant not the months from the date show prosecuting ^[10] for period on continuance not additionally shall be a continuous however, there set days prior fault of the his because of con- motion, filed, ever is attorney was detained trial, that not suffi- or later) ; period or the prose- or if trial, from later shall argument Essentially, granting is made that the request of venue motion for a on the of the defendant essentially delay by not a “caused his act.” The was facts are as follows: January posted 1968, his on 5, arraigned pleaded guilty 28,

was February on 1968. 1968, 8, On March he moved for a judge. Although panels presiding two named were judge, qualify. result, in each case nominee failed to aAs designated Supreme special qualified Court who September 7, on cause was set for trial on the prosecutor’s again motion November on the January 23, January prosecutor’s motion 1969. On filed his verified for a discharge motion his own alleging had on was trial, continuance no act. To his that no was stating attorney an affidavit motion the agree try the attorney consent or defendant’s would not 11th, holiday. case on since November it was undisputed filed no the defendant The evidence is only consideration Our a continuance. formal given interpretation proper case to a must wording it when the rule involved states his own credit not be entitled to count the shall one-year period “the was caused when involved quali nothing phraseology act.” in this There is causing respect to whether the act it with fies justifiable is demonstrated or meritorious. This ex Circuit the case rel. Demers v. Miami of State (1968), 249 in which case the E. 2d N. degree sought appellant indicted for murder and second claiming delayed discharge, plea the time the case was *3 insanity temporary procedure involved con and charged against nection therewith should be This not her. contrary, delay Court held to the that was caused her act. are, however, directly point

There cases this Court jurisdiction. Colglazier that fix the rule In this v. 571, (1953), 575, 2, 4, State 231 Ind. 110 N. E. 2d say: this occasion to Court had “Appellant delay a caused in his trial ... his act of change county a of venue from the judge. change necessarily motions Such

for trial of case.” (Underscoring added). 216, (1957), Wedmore State In v. 237 Ind. 143 N. 2dE. this further Court said: request change “Appellant, by judge, his for a set in motion the chain of events which his discharge 9-1403, trial. Hence he not to a under entitled § sufra” recently

More Norris this stated v. State in- appellant 251 Ind. 240 N. 2d where E. had augurated change voluntarily, proceedings may say discharge. not be heard to forces county

Where granted, of venue from the has been begins we have the time held run anew when changed to which transcript the venue is receives original papers v. jurisdiction. assumes State Mabrey (1927), N. It follows E. 97. begins to run anew where a venue judge is taken from qualifies when new jurisdiction. Norris v. supra. assumes State, In elapsed this case one had not when the motion for granted January 31, 1969. judgment The of dismissal trial court is reversed and the cause is remanded with directions to reinstate the case for trial. concurs;

Hunter, C.J., Jackson, J., opinion; dissents with DeBruler, JJ., participating. Givan Opinion

Dissenting agree Jackson, J. majority I am unable to with the dissent herein and thereto. appeal principally appellant’s This concerns contention entitled to Rule bringing 1-4D for defendant to trial. “ factually Majority opinion (t) states he evidence is

undisputed filed no formal for a presents The record at bar continuance.” case following chronology of events: *4 against appellee January 4, in two counts

1. Affidavit 1965; January 5, 1968,

2. arrested and, date, on said bond; posted

Í8f counsel, appeared February 1968, defendant, 28, 3. On with arraignment plea open court, entered a waived guilty”; “not days 8, 1968, arraignment,

4. after March Within ten Judge defendant filed a motion for of venue from Judge Jasper Court, day Circuit on the same panel; court named a 11, 1968, appellee On struck

5. March a name from panel; prosecuting attorney struck; March

6. July prosecuting attorney 7. advised remaining qualify nominee failed and re- quested to name panel, the court a new which the court day did; 12, 1968, July parties again struck,

8. both the re- maining qualify; nominee failed to August 9, 1968, Presiding Judge requested

9. appoint Judge Supreme Special Court to certified remaining panels nominees qualify; two had failed to August 19, 1968, 10. Supreme appointed Frank Judge; Special Dice as September 7,

11. qualified Frank Dice Special Judge; 17, 1968,

12. October on motion of the at- torney, the cause was set for trial on 1968; November Later,

13. motion prosecutor, the cause set May 19, 1969; January 31, 1969, appellee filed a verified in trial. verified discharge, defendant’s omitting parts, formal reads as follows: the defendant, “Comes now Grow, person Claude counsel, Robinson, Edwin L. respectfully moves the court to dismiss the charge above pursuant criminal Paragraph Rule 1-4D 3 of Supreme Indiana Court. *5 represents he respectfully that Defendant to the court by recognizance charge held to answer said has been past year trial, there than last without

more one or trial had on his motion was no continuance by his act. prays WHEREFORE, cause action that said of defendant discharged. and that defendant be be dismissed MEMORANDUM Supreme 1-4D Paragraph Rule Indiana 3 of of 1. Recognizance.— on ‘Defendant provides follows: as recognizance in- answer an to shall be held No Person embracing period trial, affidavit, for a without dictment or continuously on (1) from the date one more than which therein; he shall taken but was first (1) by paragraph except provided one discharged as be added) (Underscoring this rule.’ clearly is it rule shows of this An examination 2. advisory shall mandatory the defendant and that and not exceptions referred discharged within comes unless paragraph the rule. to in ‘Discharge Paragraph 1 Rule 1-4D is follows: 3. Jail.—No Delay Defendant Criminal Trials.—1. trial, charge, on a without a shall be detained defendants (6) embracing period more than six a continuous for months charge (sic) against date of criminal filed, from the date of his arrest such defendant such or later) ; except charge (whichever where continu- motion, or the his on his was caused was had ance act, try was not him where there time or sufficient period congestion during such because the court calendar; however, provided, last mentioned circumstances, statement prosecuting attorney shall make such ten in a motion for continuance not later than days trial, (10) prior the date or set if such motion (10) days prior trial, ten than is filed less additionally attorney show shall prosecutor.’ (Under- the fault of the the motion was not scoring added) paragraph above An examination of the 4. shows following shall not be in the the defendant cir- (a) where continuance had on cumstances: his mo- tion, (b) act, was caused his (c) or where try during him period there was not sufficient such congestion of the court calendar. because this cause court records in An examination of the counts the affidavit in two action shows that the was issued January 4, Jasper a warrant Circuit Court County Jasper upon the date to the sheriff of penal set in for the arrest of defendant. Bond was January 1968, the On defendant was sum of $500.00. Indiana, Jasper County, the sheriff of arrested posted penal a cash bond sum same date $500.00. appeared February open On attorney, Wright, with the Honorable Robert court waived arraignment plea and entered a of ‘NOT GUILTY.’ *6 1968, days arraign- 8, On March or within ten of date of ment, the filed a defendant motion for of venue Judge Jasper from the Circuit Court. 6. A careful examination all the of this records filed in cause action show that this motion for 1968, only 8, March filed is the any by that was ever nature this cause of action striking prospective the defendant other than names of judges. alleges any requested 7. Defendant that he never has this action, continuance of anything cause nor done delay the trial same. alleges 8. Defendant further that the court calendar Jasper congested, Circuit Court was that and there try was sufficient time to said cause of action between January 5, 1968 January 5, 1969. alleges 9. Defendant further purported that all of the witnesses live within a few Jasper County miles of the Courthouse, and have been testify available at all times in said cause of action. alleges January 10. Defendant that all at times between 5, January 1968 and ready he was available and proceed to neither action; with trial of cause said attorneys any defendant nor his have ever filed motions to have said cause of continued, action nor done anything to the trial of said cause. WHEREFORE, prays defendant that said cause of action be dismissed.” argument 15, 1969, 15. On March appellee’s was had on discharge, motion for connection therewith and on the day, prosecutor same filed an affidavit which as reads follows: Attorney Prosecuting in and for Fisher, “Thomas G. duly being sworn Indiana, first Circuit of Judicial 30th says: after Oc- deposes sometime oath he was October 17, 1968 and on or before

tober attorney for the Wright, by then Robert B. advised defendant, try this to consent to not be able would by inasmuch 11, 1968, the court as set November case on as such non-judicial day.” was a granted appellee’s Motion April the court On discharged. entry reads Discharge and him ordered as follows: being duly argument ad- having heard “The court Dis- Motion for premises, Defendant’s on the

vised in should charge, defendant now finds Supreme Court the Indiana 1-4D the Rules of Rule Attorney Prosecuting file failed to reason Continuance, required by said timely Motion for a rule try the failure to said further reason that and for the required by rule said within the time any Motion the said defendant caused Continuance defendant’s motion nor was said had on defendant, for the further act said caused reason recognizance being herein, that the defendant continuously date more one from the period of than a on which first taken. except Accordingly, alternative has no *7 discharge defendant release his bond herein. and said that said defendant be and It now ordered released is that his bond herein be released and dis- discharged. Judgment findings.” charged. Defendant on 20, 1969, praecipe transcript May for filed. 17. On was Jasper June the clerk Circuit 18. On transcript. certified July 9, 1969, appellant transcript

19. On filed its assignment the clerk of The As- of errors with this court. pertinent signment part, in Errors, follows: reads as granting Appellee’s in for “1. The Court erred Motion Discharge; discharging Appellee.” in The court erred 2. argument

Appellant’s is as follows: substantially the assigned raise “Since errors both argue one. question, Appellant same them as will discharging assigned (3) for The three reasons court recognizance for Appellee: (a) the held on was continuously period (1) year from one of more than taken; (b) recognizance first date delay was on which Ap- by any on continuance was not caused his; (c) the pellee’s act of Motion or other continuance, prosecutor timely a file failed to merit. provided reason without as in Rule 1-4D. Each Appellee’s Delay By Act Caused Trial Was Judge. Moving Change of Venue from proposition Appellant reasons Under will show (a) given (b) by the lack merit. trial court pertinent provides, part, Rule 1-4D follows: as Recognizance.—No ‘3. person Defendant shall be held by recognizance affidavit, answer or with- an indictment embracing (1) trial, period out for a more one than continuously from date on which a therein; except first taken but be this he shall provided (1) (Underscoring by paragraph one rule.’ added) Paragraph (1) provides one of the rule as follows: ‘Discharge in criminal trials.—1. Defendant jail Jail.—No shall charge, be detained in on a trial, without a period embracing continuous more (6) than six charge months from the date the criminal against filed, such defendant or date of his (which charge arrest such later); except ever is where a continuance was had motion, on his or the act, where there was not sufficient try during period him congestion such because of calendar; provided, however, men- last circumstances, tioned attorney shall make such statement in a motion for continuance not later than (10) days prior ten to the trial, date set for or if such (10) is filed days less than ten prior trial, prosecuting attorney shall additionally show that the the motion was not the fault prosecutor.’ (Underscoring added) rule, promulgated above superseded in 1965, part *8 9-1403, Burns’ the three-term § statute. However, in in- de that terpreting 1-4D, held has this Court Rule applicable the rule. to are also cisions under State ex rel. Ind. statute (1968), 249 Court Demers v. Miami Circuit 616, 238 N.E. 2d 777. a repeatedly held Prior Rule 1-4D Court to this dilatory In change motion. venue is motion for a of 2, the 571, 110 E. 2d Colglazier (1953), 231 Ind. N. v. State stated: Court * * * act his ‘Appellant delay in his caused county change filing venue from of a motion delay necessarily judge. change motions Such and for added) (Underscoring a case.’ trial of Wedmore v. State 2d (1957), 143 N. E. 237 Ind. In said: 649 the Court change judge, request set ‘Appellant, his his caused the chain of events which discharge 9-1403, he entitled to a Hence is not trial. supra, § citing cases.’ Norris v. State recently, this stated More appellant had where 2d N. E. voluntarily proceedings

inaugurated venue necessitate may say would he that this not be heard to discharge. file bar, did not the case at ‘In change of However, file he a motion did continuance. doing act, judge. initiated In venue from chronological sequence events delay in his The trial. as up follows:’ to the time of already in- sequence (This here it been is omitted has herein.) corporated filing sequence by the shows judge amounted from the of the motion for length required (6) The unusual to six for the the months. qualify special from the failure resulted qualify. remaining (2) panels to nominees of the two appoint special necessary It was judge. for this Court Although Appellee probably anticipate did following (sic) of his chain of events motion, attributable venue his nevertheless the chain of Wed- own act. He set that events motion. State, supra. interesting more v. is Appellee, note It it prosecutor, who advised the court July qualify. 10, 1968, that Thomas Dumas had failed to held, interpretation this Court has Further,

Í93 *9 run to started three-term rule 9-1403, the Burns’ § county change the venue from the first term after the prior accrued time which had the perfected, and was to State lost. change venue was request appellant’s the And E. Mabrey 157 N. 97. Ind. 199 v. 1-4D, Court, applying Rule State, supra, this in Norris v. on date beginning from the to run the to referred held perfected, and been had the which that where only five had been the to dismiss motion perfected, been venue had (5) the months after properly overruled. had been the motion period (1) year case, the one Therefore, the instant Special began the date designated from 1-4D to run Rule September 7, 1968. When qualified, Dice which was Jude April 16, 1969, he not been had Appellee was (1) year con- recognizance than one for more held on taken. the was first tinuously from the date passed, act his Although had than one calendar more (1) delay, the one filing caused venue special judge qualified. began when the year period to run Timely File Motion Failure, Any, If To Prosecutor’s Is Not Relevant. for Continuance timely failure, prosecutor any, the file if a quali- special the continuance had motion for after way delay fied, the the caused in no vitiates effect of change. Appellee’s for venue Prior the motion, prosecutor the of the venue had not filed by Ap- The first was caused motion pellee’s the the continuance. act, whether additional was caused mitigate prosecutor afterwards would not court by Appellee. delay caused 1-4D, paragraph (1) clear from Rule Further, it is one prosecutor’s motion continuance rele- becomes by congested only is occasioned a when the vant permit defendant would not to be tried calender which year period. (1) prosecutor circumstance, In that the one within states, file Clearly must such a motion. Rule make the motion the rule relevant under does (Appellant’s by the act defendant.” Brief, pp.9-15) Reply Brief attention Appellee’s devotes each of distinguishes by appellant them cases cited goes, length, He further at into constitutional case at bar. implementing statute, Indiana and the requirements of Burns’ Replacement (former 1-4D), now, 9-1403, Rule § January adopted being effective rules Criminal Rule 4. they convenience we will

For address cases order are states : cited the briefs. appellant will cases cited “An examination controlling State instant they show that are not of merit cited, ex rel. v. Miami The first case Demers case. (1968), the 233 N. E. 2d Circuit Court degree appellant was indicted for second case which murder and sought ground that had on the she right where, speedy her constitutional been denied already case set for trial June after the had been insanity temporary 1967, relator filed an answer of May 26, 1967, which, procedure reason of involved *10 regard thereto, delay trial, necessarily in in resulted of the directly applied to relator. As the of attributed facts timely promptly case, in the defendant

this change judge for a of venue from the filed his motion with days arraignment, 8, 1968, from in 10 where his March the only record here shows the that this was request any by of kind was ever filed this defendant striking action, prospective than in in judges other names of judges panels from the successive did, of which he record, promptly the prosecut shown more as than the ing attorney.” (Appellee’s Brief, pp. 9, 10) point further out that the appellant, We in cited case the there, applications twice had for in the trial 1-4D, court under Rule both of which were denied. She thereafter in original this court filed an “A action Peti- tion for a Writ of Mandate” require the trial court to dis- charge appellant delay The trial. situation there vastly the distinguish case at bar are different. Two rules (1) cases. The rule of this Court that if there evidence judgment to sustain sustained; trial court it will be Original (2) actions for writs are viewed with disfavor. will not be allowed Counsel to use such writs a vehicle as circumventing appellate process. normal Writs will granted only when a denial would result in extreme hard- case cited distinguishing between the ship. The feature successfully case at bar the one at bar is delay cause the showing he did discharged the burden of judgment the court of complained of, as evidenced ap- supports the Therefore, cited case discharging him. appellant. pellee, Colglazier by appellant case relied “The second page 11 On N. 2d 2. (1958), 231 E.

v. State quotation appellant forth appellant’s brief, has set of of five context, follows: completely of out lines taken * * * of by his act ‘Appellant caused a in his county and change filing venue a motion change necessarily delay the judge. motions Such for trial added) (Underscoring a case.’ page 4 of the Su- statement on full context preme is as follows: Court begin ‘The the Harrison terms of Circuit September Monday March, May, January, first Replace- year. 4-332, Burns’ 1946 Section November of each March filing amended affidavit on After ment. 19, 1951, appellant trial until in his caused a change filing for a May term, 1951, act of judge. county Such and for of venue from necessarily delay the trial of a case. motions appear that place However, the record does it at no March bringing appellant after the to trial the term contrary, the the by any On the act of his. was caused May the action of term prosecuting attorney a motion days days before the date trial and seven four before the term.’ end of *11 supports Supreme fully the opinion Court The the of recog- appeal. The

position in this Court of the delay upon filing necessary the of is nizes that there motion some delay change ensuing but is for of venue chargeable mandatorily the The of defendant. decision Colglazier directly op- Supreme in case the Court this is appellant appeal, posite position Court the and the this opinion Supreme in the unanimous case the that though that the defendant filed a motion for held even bringing change venue, delay in the him to trial was by any considering his, action of the not caused circum- Certainly guarantees constitutional stances of that case. the State speedy and Federal Constitutions trial would charged delay mean little if a defendant be would with by judges panels occasioned the refusal of two successive qualify judge appointment by with the later of a Supreme prosecutor later of the action finally asking that the cause five be set for trial almost expiration year. months after of a rule tend Such would discourage to jail a defendant or in who considering change asking from even for a of venue chargeable delays by if he was to be with the occasioned judges qualify may procedures who refuse to for all the through may judiciary result all of actions of the and the state. resulting From the case, facts and in this records delay following appellee’s change motion for a by from the cannot be said to have the reason arisen of such motion defendant’s judge, certainly venue from the the defendant in the responsible required instant case for, should not be held nor to, predict delays there would be such as there was in the trial of this cause as a result de- action of moving fendant herein in venue. The Colglazier Court further stated in its case, supra, page at 4 and 5 that the statute as to delay strictly ‘will be construed all resolved doubts Citing (1951), in favor of the accused.’ Zehrlaut v. State 203; 102 N. E. 2d Kuhn State v. 450, 453, 106; Ind. Law, 57 N. E. Ewbank’s Indiana Criminal p. 2d Ed. 288: Sep- contends that occasioned by tember term was caused the court’s error and could not properly charged be impressed to the state. We are not argument. say The person statute does not discharged delayed shall be if his trial beyond three terms prosecuting an act attorney, say but does (the person held) shall be unless a con- tinuance be had his own motion be caused by his act. It makes no difference whether attorney prosecuting long court, or the so as it is not caused an act of the accused. November term resulted the com- binded acts attorney and the appellant. from act no It is not contended the motion to dismiss was denied because the court believed there was evidence for the state which had, could not then that a reasonable effort

197 ground just to procure it, there was made to had been Acts term. See the it had at next could be believe 9-1404, 1942 Burns’ p. sec. ch. sec. Replacement. pro suggests enforcement that a strict supra, Replacement, will 9-1408, 1942 Burns’ visions sec. disadvantage’ attorneys put serious ‘to a they desire if securing three of court a within terms trial judge. right It is a to themselves of the avail provisions 1-12 court of rule of this our that if the diligently special judges are pertaining followed, the selection of advantage right the full discharging dnger by may the be the state without taken 9-1403, supra.” provisions under the of said sec. accused pp. 10-14) Brief, (Appellee’s point appellant, the case the defendant We out cited discharge application there, under Rule had filed his application 1-4D the had been denied in trial court. appeal, There, on the cause was reversed the failure of grant sought. Again the trial have the court to the relief we distinguishing cases; the trial feature in cited there court refused, sought grant application relief and as result, appeal Court, In the case at to this was reversed. defendant-appellee granted was the trial court bar the sought and sustained the burden defendant relief thus complained showing he of. The did not cause ap- judgment supports position trial bar, rules, pellee and, if there case at under our judgment of the trial court evidence to sustain same must be sustained. 143 v. State 237 Ind.

The case of Wedmore appellant. appellant-defendant N. cited E. 2d discharge application there had filed Replacement Burns’ 1956 and had been 9-1403 statute § argument Appellee’s the trial is: court. denied relief case, the cited the case of Skew “In the Wedmore N. In (1956), 236 Ind. E. 2d 290. maker v. State case, evidence of the the circumstances and support not appellant’s motion to dismiss properly approved certified to and was judge, and it court overruled basis doing, the motion and in so stated: recognize ‘We con- that the statute is to so strued that accused, all doubts are to be resolved in favor of *13 pre- but without the evidence us we must before sume the the evidence below sufficient to sustain was findings of trial the court.’ p. opinion In the footnote the court cites on 292 of the State, Zehrlaut 175, 203, v. 230 102 2d Ind. N. E. Colglazier State, supra. v. An the examination of the decided cases shows how zealously protected courts of have a defendant’s Indiana rights and the 1, under Article 12 of the Indiana Constitution Sec. guarantees Amendment the Con- Sixth to right stitution States, speedy of the United the to a wherein guaranteed. trial is 1, Article Sec. 12 the Indiana Con- of stitution reads as follows : open—Due ‘Section 12. Courts law—Adminis- course of justice.—All open man, tration for every of shall be courts injury repu- person, property, done to him in his or tation, be remedy by shall have due course of law. Justice shall freely, purchase; completely, administered without denial; speedily, delay.’ without and without A development consideration historical such rights case law protection the of accused to a speedy trial in the courts Indiana the shows some of cases, earlier State v. 222 (1944), 18, Beckwith N. Ind. 57 193, Supreme E. 2d trial, the Court held a demand for postponement resistance to or some other efforts to secure speedy trial must be made the entitle him accused to ground to a on the where the accused has been custody admitted to bail or is not within the of in position the Court. This affirmed the same the case of (1944), v. State 70, 223 Ind. 2d 58 E.N. Chelf 353; however, State, case of Zehrlaut v. 102 Ind. N. E. 2d the rule Beclnoith and expressly cases overruled, page on 207 of such Chelf opinion. case, In that quash defendant filed a motion to affidavit, and the Court reversed the conviction of a defendant, with appellant’s instructions to sustain to the action bringing dismiss the case trial. to The Court in this stated: statute, ‘The sec. 9-1403 Burns’ 1942 Replacement, supra, person right hold a to upon state a limitation is charge. Being prac- recognizance criminal answer a to Con- Indiana 12 of the implementation of Art. Sec. tical defendant, does upon but stitution, no burden it casts officers, upon and its duty the state imperative cast an a de- attorneys, see that to trial courts fendant held agreeable brought to trial is implementing and its the constitution this section with silent if he remain fault of the statute. is not a It right. contrary, recognizance, is his while required state make demand He is court for him effectively made speedy That demand is trial. statute, implementing and its the constitution may ignore with- made state this demand thus and out provided by A incurring penalty con- statute. trary v. State made this court in statement Chelf hereby E. 2d overruled. 58 N. the statute the enactment of Since based, have no it cannot said courts to dismiss by which determine what is an unlawful rule definite delay recognizance bringing trial, a defendant who is held under possible is it bail. Neither courts organized society that interests of an offender balance the *14 go against free and those the its laws shall individual delayed.’ The shall not be statute is constitu his trial that tional binding upon state, it the the defendant is jurisdiction disregard No court to the courts. has amend or implementing statute, the constitution or its nor either a court can judicial exceeding exercise a discretion the limita imposed. thereby To the extent State v. tions Beckwith 193, supra, (1944), 222 Ind. 57 N. E. 2d is in conflict disapproved.” (Appellee’s it Brief, pp. is this with 14-17) Again the point out cited case we the trial court taking appeal, the relief and on into account other denied judgment well, the of the trial court matters as was affirmed. distinguished the cited case at bar in that The case at the case bar the sustained his burden and was judgment granted the trial court. This relief under our affirmed. should be rules majority opinion next discusses case of Norris

The v. 155, 240 N. 2d (1968), 251 Ind. E. 45 and there holds: State “* * * inaugurated appellant change that where had may proceedings voluntarily, to not be heard discharge. say that this forces his change county of venue from has been Where begins granted, to we have held the run anew when changed the court to where venue is the tran- receives original script jurisdiction.” papers and assumes Again distinguishing feature of cited case is that appellant unsuccessfully sought there based ground year. appellant there was not tried within one appellant one, In the cited case but motions to two The court stated: dismiss. Appellant’s first motion to dismiss was filed “[3] only (5) five November motion came about This change requested by months after the venue perfected. appellants appellants had been in- had augurated free will. would necessitate their dismissal. proceedings voluntarily and say their own They may not now heard that this Indeed, before this venue, petitioned had been defendants had granted in delayed proceedings continuances and also had ways. Therefore, we other hold first motion properly dismiss was overruled.

[*****] *15 pellant’s motion.” Norris which we lant’s The 2dE.N. alleging at whose insistence cannot discharged dismiss ^[4] certainty, any way. regard, appellant say There is insufficient evidence in the that he was free from 45. Trial are as a His of venue was made no able to draw a matter without motion, Rule 1-4D (supra). exactly allegation v. State law evidence, standing what correct perfected this cause was conclusion with transpired contributing appellant in its in his second motion to or a verified alone, to Sullivan Therefore, we hold overruling 251 Ind. after is entitled to be inadequate record from delayed, allegation County. degree appel ap we appellee successfully the case at bar In sustained the burden proof granted the trial court and was sought the relief by judgment judgment of that court. Under our rules the trial court should affirmed. Mabrey (1927), E. case of State v. 157 N. hardly point that case the since affidavit county morning venue from was filed on the the case Furthermore, cases,

was set time than for trial. later in majority Mabrey, appellant, cited and the longer applies indicate rule therein no enunciated requirement implementing view of constitutional supplanted statute since rule. careful all the

From a consideration of factors and the law judgment appears here involved it trial court things should in all be affirmed.

Note.—Reported in 263 N. 2dE.

Bridges v. State of Indiana. 5, 1970. petition [No. 1269S278. Filed November No rehearing filed.] Bunner, Evansville, appellant. John G. Sendak, L. Attorney General,

Theodore Kenneth Mc-M. Attorney Dermott, Assistant General, appellee.

Givan, J. Appellant charged by indictment with the degree crime jury of second Trial murder. resulted