Bewley v. State, 30531

• Decision Date: 21 October 1966
• Docket Number: No. 30531,30531
• Citation: 247 Ind. 652,220 N.E.2d 612
• Parties: George Wm. BEWLEY, Jr., Howard Lee Dulworth, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 612

220 N.E.2d 612

247 Ind. 652

George Wm. BEWLEY, Jr., Howard Lee Dulworth, Appellants, v. STATE of Indiana, Appellee.

No. 30531.

Supreme Court of Indiana.

Oct. 21, 1966.

L. Keith Bulen, Indianapolis, for appellants.

John J. Dillon, Atty. Gen., Carl E. Vandorn, Asst. Atty. Gen., for appellee.

ARTERBURN, Judge.

The appellants were charged with the commission of a felony (robbery) while armed. After trial by jury they were convicted as charged, and sentenced to imprisonment for ten years in the Indiana State Reformatory. They filed separate motions for a new trial. Appellant Dulworth's sole argument on appeal is that he did not have a speedy trial under the Constitution within the meaning of the two-term statute. Acts 1905, ch. 169, § 219, p. 632, as amended in Acts of 1927, ch. 132, § 12, p. 418, being Burns' Ind.Stat.Anno. § 9-1402 (1956 Repl.).

It appears that this argument is based upon a factual contention that although he was not an 'jail' for two terms awaiting trial, he was in the state reformatory serving another sentence. This is not a legally sustainable contention by the appellant.

In Finton v. State (1963), 244 Ind. 396, 400, 193 N.E.2d 134, 137 we stated in this connection:

'* * * it appears that the facts do not come within the provisions of Burns' § 9-1402, supra, as the words 'detained in jail, without a trial' used in the statute have heretofore been construed by this Court not to be synonymous with confinement in a penitentiary for another crime.'

It is further contended that the delay in trial prejudiced the appellant for the reason that if he had been convicted earlier, he would have served the sentence in this case concurrently with the one he was serving then at the State Prison. We think this point may be disposed of by saying that there is no constitutional right on the part of a criminal to serve his sentences concurrently for various crimes. To so hold would minimize the penalty for the commission of additional crimes, since the sentences could all be served more or less concurrently. We further point out that the delay in the trial in this case was not that of the State, but rather that of the appellant who, through his own fault, by his own acts, caused himself to be confined in the state penitentiary.

What has been said disposes of the appeal of appellant Dulworth.

We come now to a consideration of the appeal of appellant Bewley. The appeal is limited to specifications in the motion for a new trial.

The State points out that specifications in the brief numbered 3 and 6 are not supported by citation of any authorities or precedent as required under Rule 2-17 (e) and (f). We are reluctant to invoke this rule and not consider the specifications not properly presented, but we have no alternative in cases where the defect or violation of the rule has been pointed out to the opposing party, but the opposing party had made no attempt, by amendment or otherwise, to cure the omission, violation or defect. Stearn v. State (1951), 230 Ind. 17, 101 N.E.2d 67; Wright v. State (1959), 237 Ind. 593, 147 N.E.2d 551; Tait v. State (1963), 244 Ind. 35, 188 N.E.2d 537; Bennett v. James H. Drew Corporation (1956), 126 Ind.App. 557, 133 N.E.2d 886.

This cause, however, must be reversed on two grounds which are properly present for review. We consider both of them in order to avoid the same errors upon retrial.

Specification 4 sets forth that State's witness, Jerrell Handy, testified for the State and identified the appellants as the persons who had robbed him at the United Oil service station. He testified particularly as to certain identifying marks and the mask which one of the appellants wore. On cross-examination he was asked if it was not a fact that there was a reward offered for the conviction of the person or persons found guilty of the United Oil service station holdup. The court sustained an objection to such question on cross-examination. This appears to us to be a clearly erroneous ruling, since the interest of a witness in the outcome of a trial may always be shown.

In Walker v. State (1963), 244 Ind. 258, 260, 191 N.E.2d 488, 489, we said:

'The court may not properly deny the cross-examination of a party concerning facts connected with his own acts and statements relating to the case which tend to impair his credibility or show his interest, bias or motives as a witness.'

In Bryant v. State (1953), 233 Ind. 274, 118 N.E.2d 894, we said the fact that a witness may be influenced by financial considerations depending on the outcome of the case, affects his credibility.

Finally, in our opinion, the court erred in refusing to give appellant Bewley's tendered instructions 5 and 6. These two instructions stated that the crime of assault and...