*1 of the transmis- vicinity ment, in the or be main erection, operation the wide use the with line, inconsistent is a use power sion electric plaintiff's of tenance own- by the the easement enjoyment of lawfully ap lines transmission en- estate, is an dominant public. the er of the a service propriated for encroachment such Whether 40-1; v. Yadkin croachment. 56-5, Wissler G.S. §§ any particular of fact matter Co., S.E. occurs is a 158 N.C. Power River all trier from by the case, be determined the easement for compensation 460. Just This Elec- paid. National according to law The taken circumstances. use private to itself of of and withdrawal Safety effected a Code is tric the factors determinative, one of is but to the extent owner strip by the of this interfere him would by use in determin- such court be considered Hastings v. occurs. Co. use. encroachment public ing with whether 45 Ga. Corporation, Gas Natural Southern by the court reached The conclusion where a And 166 S.E. App. justified case of this the facts ac has been way or easement of ground raising of the evidence. for corporation public service by a quired of storage fill, coupled level its perform enabling it of purpose other it, have no can body hulks car enjoy or its is invaded public duty to the are not a hazard. to create than effect injune with a interfered ment remedy this case catalyst of unmindful is availa prohibitory mandatory tion dump by a line made a contact Olive, N.C. v. ble. Railroad truck. added.) (Emphasis 263." 55 S.E. forth, cause reasons set For Later A.L.R.2d also, 6 A.L.R.2d See affirmed. 1-6, for page Vol. Case Service problem. Affirmed. of this discussion reasoning set forth We find J., RATLIFF, J., ROBERTSON, P. Co., supra, applica Light Power & Carolina concur. Appellants' this case. facts of ble to the in the the rule letter of upon the
reliance misplaced. Safety Code is Electric National the busi electricity is of
The transmission purpose of the M and ness of I & lines transmission High voltage
easement. M is and I & propensities, dangerous have regulations the law required under Defendant-Appellant, TERRY, John to exer Commission the Public Service of in the construc of care high degree cise a Indiana, Plaintiff-Appellee. their of tion, maintenance operation, and STATE may do utility lines. transmission No. 3-379A71. necessary to effect reasonably whatever is Indiana, pur for that the easement enjoyment Third District. pose. ex Feb. follows necessarily operation practices safety ercise April Denied Rehearing lines one voltage transmission high enjoyment of use incidents to the part activity on Any easement. materi estate which of the servient owner line more operation
ally renders public who members dangerous to the ease- on to to come occasion
may have *2 Gary,
Robert DeLoney, L. for defendant- appellant. Sendak, Gem,
Theodore L. Atty. Richard Alford, Gen., Indianapolis, A. Deputy Atty. for plaintiff-appellee.
GARRARD, Presiding Judge. Appellant Terry jury was tried IC 85-18- robbery. was convicted of See (Repealed). appeal presents 4-6 His three assertions of error.1 principal concern is contention granted the trial court should have motion to dismiss because of in arresting him for the offense. argued challenging and is assigned the evidence was not sufficiency
1. A fourth error therefore waived. pre sufficient is of proceedings further on March discloses The record in a Barker trigger charging was filed sumptive 1975, an information factors.3 the other quiry into com been robbery that Terry with a Al about on or mitted time during the appears is promptly an arrest though *3 of the unaware Terry was mid-No sued, was not Terry He resided outstanding warrant. charge or court appeared vember, then 1977. and worked period the throughout Gary 14, 1977.2 November on including employers, two local least for at approxi- delay of that a argues Terry According to Authority. Housing Gary the the between years one half mately two and Gary with several acquainted was Terry he was his arrest and the information filing of and him had seen who officers police for him was that it prejudicial so dur exchanged conversation he had whom Thus, contends a fair to receive appear short, not it does period. ing the rights constitutional his delay violated incarcerated that the record from the sixth both under speedy trial to area, was at elsewhere, left the Constitu- United States to the amendment Moreover, discovery. to evade tempting the Indiana I, 12 of article section tion state the is no evidence there Constitution. trial, faith to in bad acted protec course, the of agree We diligence of evidence is there neither attached provisions by these afforded tions his arrest. procuring effort reasonable information. filing of the upon the Terry to matters upon these is silent record (1971), v. Marion See, g., e. state the inference to the susceptible is 468; 30 307, 92 S.Ct. 404 U.S. appear Thus, does negligent. N.E.2d App., 360 (1977), Ind. Cooley v. State good occasioned the 29. no adverse Moreover, suffers cause. U.S. (1972), 407 assert Wingo to In Barker his failure inference the penden- 2182, L.Ed.2d of the 92 S.Ct. unaware rights since he > of assessment rejected charge. a mechanical the cy Court of balancing of a in favor claims of a consideration must turn then analy the Barker applied has test. Indiana stated the Terry. As prejudice state constitu our under made sis to claims Ind., 387 N.E.2d (1979), v. State tion. Wade de- to the is factor A fourth Ind.App. v. State Collins course, be Prejudice, of fendant. 868. N.E.2d interests of the light assessed relevant factors: four identified speedy trial which defendants delay, for the reason delay, length of has This Court protect. was designed assertion defendant's (i) interests: such identified three defendant. to the right, and incarceration; oppressive vent 2191. at at concern anxiety and (ii) to minimize possibil- accused; (iii) to limit facts We believe impaired. bewill defensé ity that the one delay of two presented last, because charge and these, most serious formal filing of the between to some extent length "The 3. proceedings fol- challenge to the is made 2. No de- is some triggering Until there mechanism. beyond the issue is lowing Thus his arrest. presumptively prejudicial there lay which Crimi- Procedure, Rules of of Indiana purview the other into play necessity inquiry no into comes nal Rule Nevertheless, be- go the balance. into ac- or arrest imprecision of the cause of com- However, later. occurs whichever cused, provoke length that will Ind.App., pare Roberts State v. necessarily dependent inquiry is an N.E.2d 181. 407 U.S. case." peculiar circumstances 530-531, at 92 S.Ct. adequately objections inability preserve are insufficient error. Dorsey App., v. State prepare his case skews the fairness of the system. entire
are no factual contentions that witnesses STATON, Judge, dissenting.
died or were unavailable or were unable to
I dissent.
Instead,
remember.
position that
it is his
The Sixth Amendment
the United
proof
burden of
rested with the state to
*4
provides,
part,
States Constitution
in
that:
establish he was
prejudiced (Appellant's
prosecutions,
"In all criminal
accused
brief,
12,
Thus,
pp.
18).
he contends that
enjoy
nght
shall
because the
produce
state failed to
evidence
public
prejudice,
to show no
he was entitled to
protection
This
stripped
should not be
discharge.
an individual without due consideration and
We disagree. The burden was upon
serutiny.
close
Terry to show that
actually
he had been
19, 1975,
pros-
On March
County
the Lake
prejudiced by
Wade v. State
ecutor
affidavit and
probable
filed a
cause
(1979), Ind.,
1309, 1310;
387 N.E.2d
charging
John
(1975),
487,
745,
263 Ind.
Baker,
robbery of
from Arthur
$838
749, See also the Indiana
analogous
cases
Baker
at
working
as an attendant
a
Marion,
the situation in United States v.
Gary.
Clark service station in
After deter-
complains
where
accused
delay
mining
probable
cause existed to arrest
prior to
prosecu
arrest or the
initiation of
Terry,
the court
issued a warrant
for his
tion.
imposes
Indiana
the burden of estab
arrest on
1975.
was not
lishing
prejudice upon
the accused.
on
this warrant until mid-Novem-
Ind.App.,
McMorris v. State
ber of
and one-
1977-approximately two
N.E.2d
Burress v. State
the information had been
App.,
given the identification. As such was for balancing instructs us to use a the jury's consideration. It was not a weighs test which the conduct of both the ground for mistrial. prosecution. defendant and the The Court
Finally, Terry objects to the intro explained, at 2192: 407 U.S. at compels balancing necessarily "A test duction of photograph part of him as the state's case on on approach speedy rebuttal. ob courts to trial cases jection general at trial was a one. little more Such an ad hoc basis We can do the issue of addressed Court the factors identify some of than an accused bringing determining delinquency State's assess courts State, upon a It concluded to trial. has been particular whether demand1, "dili must make a defendant's Though some right. deprived of bring him before effort" gent, good-faith we ways, in different them might express Constitutionally-im This to trial. the court Length of de- such factors: identify four the Indi reemphasized duty was posed delay, the defend- for the the reason lay, Springer v. State Court ana right, ant's assertion There, N.E.2d (1978), Ind.App., the defendant." part upon the State's focused (Emphasis supplied). the issuance between occasioning v. State in Collins
Our Court date the trial of the arrest deemed Ind.App. We said balancing test. light of the Barker Art. to Ind.Const. applicable test 470-471: § bad faith may well be that "It position majority in its agree with the I other renders part delay is suffi- and a half this two diligence But the irrelevant. as to ne- prejudicial" ciently "presumptively length questions closely tied to Bark- pursuant inquiry, further cessitate purpose as legitimate delay, negligence for a record er, searching supra. of, faith, the conduct opposed to bad I find lengthy delay, explain this reason to upon, the defend- effect of *5 both the Terry was unaware none. we con- for this reason ant. outstanding information pending requirement constitutional clude period, During this arrest warrant. good faith diligent, 'a to use for the State normal fashion. his life in a went about myriad examination requires effort' Place Roosevelt at 1978 his wife lived including, but not considerations factual when, separat- in 1978 until sometime in to, forth set those necessarily limited wife, to 595 West he moved ing from his Wingo, supra, Barker v. were located residences Both 20th Avenue. L La La L La La at the Bud Terry worked Indiana. Gary, in inadvertence time, negligence or then took a "Though Gary for a Plant in in the State against heavily weighted less Authority. He Housing Gary job with the pur- than is balancing test job his with worked at the Barker he had testified that nevertheless, must be nearly two day for poseful delay, Gary every City the ulti- since equation considered It is clear trial date. years prior to the affording speedy responsibility mate and one-half this two government, being incarcerated rights rests attributable to trial the defendant. than with rather alias, being a elsewhere, an his use of (Em- Rather, at 2192." evading arrest. Wingo, supra, 92 S.Ct. fugitive or his v. omitted) (Citation inadvertence, supplied) neg- phasis lengthy delay was due part of on the purposeful act ligence or silent, I will assume the record While ' Terry's arrest. failing to effect in the State in ar- negligent merely State him, finally arrested Even when the State home address resting Terry. Because not on the basis it was when it arrest on the appeared outstanding warrant. 15, and because issued on safety sticker Rather, it was because Gary City by employed expired. his car obviously,had police, during which to necessary information (1969), 393 U.S. Hooey In v. Smith inadvertence apprehend him. Through the United States 21 L.Ed.2d S.Ct. State right. v speedy See Williams trial "demand" not make a did 1. The fact Ind., prison 387 N.E.2d being neither. held he was because recognizance assertion will not bar his under Ind. 1163 TERRY v. STATE Citeas400N.E.2d1158 poor it failed to do bookkeeping procedures, upon Terry the burden was to show so. actually prejudiced by that he had been cases, In two of the four MceMorris perhaps greatest Of concern here is the (1979), Ind.App., v. prejudice as result (1977), Ind.App., and Burress v. State arresting him. The delay State's %, delay N.E.2d 10386 issue was from supra, Court in the occurrence of the act until the issuance said: filing of the indictment or the of the infor- "A prejudice fourth factor is to the right mation. The Amendment Sixth to a course, defendant. Prejudice, of pre-ar- trial does attach to this be light assessed in the of the interests of rest, such, pre-indictment periods As it is right defendants which the difficult to understand how either case bol- designed This Court has protect. majority's opinion sters the in view of this (i) identified three such interests: fundamental difference between the cases. incarceration; oppressive vent bar, In the case at (ii) anxiety to minimize and concern of McMorris, Terry; had attached to accused; (ifi) possibil- to limit Burress, supra, it had not. ity impaired. that the defense will be these, last, the most serious is the because complained the defendants the inability adequately of a defendant six-day delay of a between arrest and ar- prepare his case skews the fairness of the raignment as a violation their system. disap- entire If witnesses die or speedy trial. quickly One can see that the pear during delay, is obvi- majority's reliance this case is mis- ous. There is also if defense placed. 6-day delay negligi- Not witnesses are accurately unable to recall bar, light ble in in the case at past. events of the distant Loss of mem- periods but the time are differ- ory, however, always is not reflected in Owens, supra, ent as well. forgot- the record because what has been here, arraignment, from arrest rarely (Emphasis ten can be shown." from the the informa- *6 (Footnote supplied) omitted) tion and the of the arrest warrant issuance There that this can be no until the arrest. This difference is crucial. provide denied opportunity to a The knew he was un- charge. defense to the nearly impossi- It is arrest; and, accordingly, der he could ble, however, clearly particularize to hand, pare Terry, on the other a defense. prejudice resulting from this denial of a was unaware of the fact that he was even speedy began trial. While the to suspected committing a crime until he build shortly its case the crime oc- years was two and one half later. curred, Terry begin was forced to wait and this ability prepare His to a defense at investigation several years later. At point sufficiently impaired was as to de- point, that evidence was lost and memories prive him of a fair trial. had faded. He will never know what evi- Ind., In Wade v. during period. dence was lost to him this delay between there was a 15-month majority The concludes that and the arrest of the information speedy trial was not violated because During of the defendant. this 15-month prejudice. was unable to show It the defendant was incarcerated for upon relies four proposition separate cases for the a relation- conviction had no drugs. 2. Both cases of this involved the sale of In 3. The Constitutional protection McMorris, supra, explained provision upon the court indictment attaches formal ~ arrest, or ongoing drug whichever 7-month was due to the investigation protect identity to of the earlier. United States v. Marion agent. undercover 92 S.Ct. State v. Roberts App., 400 N.E.2d-26 prior. years and a half two whereabouts After balance charge.
ship to the where no idea no idea. He had Barker, supra, factors, to pursuant ing the &" he was. the defend held that Wade the Court not been trial had to ant's terms, reconstruct we could practical In however, limit careful, abridged. It over which occurred day aon our activities such cireumstances." "under holding to its it. I doubt ago? years and one-half two Wade, at 1310. supra, What we do? did What we? Where were hair? was our long wearing? How we were note Again, I must so, In who? If approach anyone? we we with mandates Were an- defense, questions Admittedly, preparing basis. ad hoe cases on an easy analy- importance. lend itself crucial not approach does them are swers to however, protection does, insure sis. handicapped here, State, The rights. Constitutional of an individual's robbery had It knew case, I find in this weighing the thereafter, had is and, shortly occurred one-half the two the sus the arrest a warrant sued using was neither Terry. He occasioned ample addition, had had the State pect. con- arrest, To the evading an alias crime, the scene to visit opportunity Gary. City employed trary, he wit possible and seek victim talk duty has a Constitutional The State only consult it needed Before nesses. effort" "diligent, good-faith make Unfortunately, prepare. its notes Smith, supra; bring an accused knowledge.4 of such benefit lacked here conduct The State's supra. Springer, delay resulted I conclude that and cor- Terry's name reprehensible. prejudiced so deprivation speedy trial the arrest were on rect address fact integrity impugn Terry as to issued on it was when . finding process. two then, not arrested was he Why, reverse. Accordingly, I would later? and one-half is clear. him resulting prejudice Terry must majority's conclusion is reminiscent show actual If "dog-chasing-its-tail". proverbial the events reconstruct able to might robbery, on the date his life Larry BANK STATE type SUN RISING some to structure been able have Defendants-Appellants, was, impossible. Kinnett, As it defense. W. explained: attorney
His course, was re- Defendant, "The *7 M.D., FESSLER, S. Gordon two and in his mind go back quired to Plaintiff-Appellee. specific up with a and come No. 1-679A177. doing going, he was what and asked date out to pointed date. We specific Indiana, on that laymen average that the [sic] the Court Fourth District. just would be you aware is well Feb. recall that able to to be about out borne this was time. I think specific say were unable in the trial itself. asking the any evidence produce
or to that, the defendant during this entire (1975), 44 Ohio in State Cornell 4. The court had in the area. had lived had worked a nearly 891 considered Misc. pending indictment been notified never whose a defendant It held that issue. identical been listed though his name even after the 35 months not occur arrest did his Constitu- book. was denied of his indictment telephone date noted The court tional