*1 685 Dale E. Utterback of Indiana. May 2, 1974.] 474S91. Filed
[No. Holwager, Holwager Harrell, & Grove, Beech J. appellant. Sendak, Attorney General, Dwyer, L. Robert E.
Theodore appellee. Attorney General, Deputy upon plaintiff’s case is before J. This us Prentice, petition (appellee’s) Appeals, to transfer from the Court opinion The decision and Second District. of that Court which judgment N. E. at 300 reversed the trial court the first issue as hereinafter discussed. hereby granted, Transfer the decision of the Court Appeals is set aside. *2 degree burglary Defendant was convicted of second in a by jury imprisonment and was for not sentenced (2) years. appeal less than (5) two nor more than five His presents issues, four to-wit: Ruling I. denying of the trial mo- defendant’s discharge
tion for under Criminal Rule Ruling II. permitting of the trial court day amend the affidavit on the of trial. challenge III. array by Denial of the defendant’s
reason of having place some discussion of the case taken presence. in the court room in their Overruling, filing, IV. in advance of of a mo- defense tion for mistrial. defendant, by I. counsel, The ISSUE filed a for motion early May 18, trial on court, 1972. The time at that presence prosecutor of the counsel, defense set August 7, taking the trial for 1972. Without into account a possible holidays, intervention of this fifty-four judicial days appeared The later. defendant the date of trial delay and filed his motion for for beyond judicial fifty days, relying upon Criminal Rule Bryant (1973), v. State 261 Ind. 301 E.N. 2d 179 Layton v. State 301 N. 633, we held that under Criminal Rule it was incumbent protest, the defendant at opportunity, his first if his subsequent date was set for a permitted date to that under the rule and regarded that his failure to do so must be acquiescence and waiver. These cases concerned the six fifty judicial day months rule rather than the rule not yet been decided when the decision in the case under con sideration was made. The State claimed that rule, estopped to invoke the object was inasmuch as he did not however, setting. Appeals, Court The time of the simply “We said: impressed this rationale was not 4(B) protections afforded Rule CR. perceive the do not prosecutor and familiarize require a defendant responsibility of the procedures. It with critical prosecute properly.” prosecute and Appeals rehearing, acknowl- Court petition for On Bryant holding edged subsequent Court interim, but handed down in the Layton, had day fifty judicial they applicable held were require 4(B) saying construe Rule CR. rule, do not “We fifty objection. redundant. would be Such similar com- specified period in Rule does (50) action, has taken affirmative until after the defendant mence properly requested cannot i.e., trial. Such failing trap prosecution be said to set holding rights apparent rationale as was assert his State, supra” Appeals Bryant further The Court *3 discharge 4(B), provision regarded for in Rule CR. significant. being 4(A) was not embodied CR. Layton, intend, Bryant, supra, We did not either supra, imply trap for had laid
court or should decision based waiver our 4(A) equally applicable be under both Rule CR. slight and Rule The CR. difference operation mechanical two does not warrant rules different treatment the error is when court errs and party. purpose known to The to assure of rules is material trials and not defendants. The time difference between the rules is under the one the running automatically, de starts while the other the trigger event, fendant must it with a motion. either ruling incorrect, party offended is is made reasonably presumed it, or should be aware of aware obligation to it, call it to the attention it is court’s permit If so, a correction. fails to do he should in time to complain. legal not be beard are under The courts protect rights moral mandate to the constitutional accused persons, entirely acting but this should not relieve them from reasonably vigorously in their own behalf. enforce We' will speedy trial, ato but do not intend that accused we persons escape should abuse of the means we designed protection. for their originally charged Municipal
ISSUE II. Defendant was April 6, April fight Court 10th, 1972. On he waived his probable hearing to a cause and was bound over Criminal April 26th, Court. appointed On counsel was and the de- arraignment plea fendant waived guilty. and entered pre-trial May A conference was for set 10th. The conference was held as scheduled and the cause was set for trial May May 18th, requested 18th. On early jury trial under Rule The motion was granted August and the trial set for 7th. appointed
At the time the State filed an amended charging affidavit the same offenses but with somewhat (cid:127) greater specificity. thereupon The defendant filed his Rule previously discussed, motion and after the same was overruled, filing he entered his of an amended affidavit. Municipal Court, pertinent filed in parts, affidavit
was as follows: «* * * April County on or about 1972 at and in the aforesaid, unlawfully, did then and there feloni- ously, or burglariously, Building break and enter into Triangle upon premises Market Structure situated
known as 600 Ave., County, N. Massachusetts Marion In- diana, felony with the intent to commit a therein to-wit: Theft —OAPA.” *4 The amended affidavit filed in Court, pertinent Criminal in parts, was as follows: “* * * April, on about 5th of A.D. at County and of Marion in Indiana, of did
. unlawfully, then and there feloniously' burglariously and' George building of and structure enter into the break and Cassorla, Estell, and Helen Mike Estell, Cassorla Deborah Triangle doing Market, as then partners, business City of Avenue, North Massachusetts at situate there Marion, Indiana, County of Indianapolis, said place human building structure was not therein, felony to to the intent commit a habitation, with feloniously knowingly unlawfully obtain wit: George property of control over said unauthorized exert Cassorla, Estell, Mike Helen Estell, Cassorla and Deborah Triangle intending to doing as Market business partners, Estell, George Estell, Deborah Mike Cassorla deprive said Triangle doing Cassorla, partners, business Helen and Market ** property, benefit of said use and pointed out us that the affida- amended has The defendant April 18th and that State had had executed had been vit prior opportunity file date. ample preferred unquestionably practice agree, and We affidavit, necessary, amended file an is to agree, however, possible time. We do the earliest changes affidavit, in the amended substantive there were thereby. He perceive harm could have fail we greater prepara- placed burden under misled or fact, the additional information in- defense. tion of his placed affidavit amended restrictions in the cluded State. argues permit filing
Defendant further late affidavit was erroneous it entitled amended but that to have moved him to a continuance for such would prejudiced 4. his Rule CR. agree However, do not have been we entitled case. A motion continuance therefore would go refused, hence we properly need not question. Following ruling upon
ISSUE III. an adverse filing affidavit; of the amended moved regular jury panel to strike (challenge and venire “* * * array) reason of some discussion of the case *5 Citing in room.” This motion was overruled. Spencer v. 147 N. “The
defendant states: record is silent as to what remarks may or by prospective conversations have been heard jurors may what means manner or permitting prejudiced, prospective nonetheless the mingle jurors freely other with defendants, spectators, witnesses, participating others in criminal cases unrelated they subsequently hear, practice case will is a * * condemned, What should was written Chief Spencer in the case, supra, Arterburn Justice was: “We do practice permitting approve mingle of the jury freely spectators participating and those with in during the conditions stated.” The “con faintly stated” do not ditions resemble the circumstances complained inof the case before exposure, any, us. Such if jurors might prior have had occurred to the trial. purpose of the voir explore dire examination is to such conjecture possibilities. Only speculation sheer support suspicion any even jurors of the in this case prejudiced any way by might could in they what prior have observed or overheard to the voir dire examination. Following ruling upon ISSUE IV. the adverse his chal- lenge array, judge added: “Defendant’s mo- tion for mistrial say is overruled advance.” Other than to clearly error, this was enlightened defendant has not us, respect is bare with record to what was intended. no motion for before court, There was and we procedure judge no which a anticipate know of can motions Judges in advance. and rule them attempt should not any counsel this manner to intimidate manner, other present counsel should but neither frivolous motions. With- suggesting the court intended intimidate, out there is way any counsel inwas no indication that intimidated. On contrary, zealously defendant was represented and a fair trial. The State’s evidence obtained burglary. apprehended act of in the that he was disclosed defense. no evidence offered He judgment error, of the and the trial- find no We affirmed. concur; Hunter, De- JJ.,
Arterburn, C.J. Givan J., with'opinion. Bruler, dissents
Dissenting Opinion *6 argued may Bryant it J. While be it as was in DeBruler, State 301 N. E. 2d the that acquiesces delay beyond' defendant the of his trial the by provisions 4(A), by time limited the of CR. his failúre lodge upon objection notification, an date, to that trial argued may validly governéd it so be this case which is by 4(B), CR. Criminal Rule reads as follows: any jail “If defendant held in an indictment or discharged trial, affidavit if move for an shall he be shall brought fifty judicial (50) days trial within from motion, except
the date of such where a continuance within period motion, delay said caused is had on his or the is otherwise by act, his or where there was not sufficient time try during fifty judicial (50) days him such because congestion of Proyided, of ever, cuting attorney as under subdivision the calendar. the how- . circumstance, prose- in the last-mentioned the timely shall file motion for continuance (A) rule.” of this By specifically request rule the defendant must he fifty days. put here, request be to trial within Where as such (cid:127) specifically upon no made, there basis is is which to rest any presumption acquiesces or belief that defendant in or setting agrees beyond fifty-day period. a trial As Judge put it, Ap- the Second Sullivan District Court of peals, object redundant it defendant setting beyond fifty-day period. to a trial This is so motion itself constitutes a clear because the days. fifty beyond the When the defendant trial exercises his fifty-day option motion, he file notifies the trial speedy perceives being he his trial interests expedited beyond served and that a trial upon speedy impinge fifty days will interests, his trial put fifty if is not trial within days, the next he discharge. and be entitled to his will move for by Bryant, requirement, supra, erected de- object setting fendant must which takes the case beyond six months limitation set 4(A), CR. awas response play several factors which do not a role a case governed Bryant, In such cases as CR. is difficult exactly any given time to determine six months period expire. Procedural moves and counter will moves are constantly requiring and the defendant to reassess positions. Also, speedy constantly their developments during guarded six prepara- months period fifty with the tion to file a motion, in the event he considers delay impinge speedy trial interests. dissent. I therefore Reported in 310 N. E. 552.
Note. — Aubrey
John v. State W. Indiana. *7 May 6, 973S183. Filed [No. 1974.] appellant. George Purvis, Indianapolis, for A.