Blume v. State

• Decision Date: 18 April 1963
• Docket Number: No. 30101,30101
• Parties: Calvin Fred BLUME, Leo Grant Kissinger, Appellants, v. The STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 568

189 N.E.2d 568

244 Ind. 121

Calvin Fred BLUME, Leo Grant Kissinger, Appellants, v. The STATE of Indiana, Appellee.

No. 30101.

Supreme Court of Indiana.

April 18, 1963.

Rehearing Denied June 24, 1963.

[244

Ind. 122] Robert L. Dalmbert, Robert L. Stevenson, Columbus, for appellant.

Edwin K. Steers, Atty. Gen., William D. Ruckelshaus, Deputy Atty. Gen., for appellee.

LANDIS, Justice.

Appellants were charged by affidavit with the crimes of safe burglary and automobile banditry. After a trial by jury appellants were found guilty of safe burglary and sentenced to the Indiana State Prison for a term of five to ten years. They appeal from the judgment.

Appellants first contend tht court below erred in overruling appellant Blume's motion for continuance filed five days prior to the trial. The motion signed by appellant Blume's attorney alleged in part:

'3. That on the 31st day of December, 1960, he was informed by the duly elected Prosecuting Attorney of Bartholomew County, that said Prosecuting Attorney was considering filing a motion for change of venue from the County in said cause and that in any event, said Prosecuting Attorney informed him that said cause would not be tried January 9, 1961, that being the date upon which said cause was set for trial.

'4. That in reliance upon said statements of said Prosecuting. Attorney, this affiant informed his client that said cause would not be tried and did not proceed further with preparation of said case.

'5. That said statements by said Prosecuting Attorney were false, misleading and have resulted in denying this affiant the opportunity to prepare sufficiently for said trial.

'6. That there is not now sufficient time for said affiant to adequately prepare a defense in said cause.

'WHEREFORE, said affiant prays the Court that said affidavit be sustained and said cause continued.

'/S/ Robert L. Dalmbert'

At the outset it is unnecessary for us to consider whether both appellants may predicate error on the overruling of the affidavit for continuance filed by appellant Blume, in view of the result we have reached in this case.

Appellants concede that the granting of continuances in cases such as this is not governed by statute but is addressed to the sound discretion of the trial court. ¹ It is contended this discretion was abused by the court in the instant case for the reason that appellant's counsel did not have sufficient time to prepare for trial citing: Petro v. State (1933), 204 Ind. 401, 409, 184 N.E. 710, 712, and Powell v. Alabama (1932), 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158, 171, 84 A.L.R. 527.

In the case before us it is undisputed that appellants had counsel of record for some eight months prior to the trial and appellants predicate their right to a continuance on the basis of the statement by the prosecuting attorney on the 31st day of December, 1960, that latter '* * * was considering filing a motion for change of venue from the County * * * and that in any event * * * said cause would not be tried January 9, 1961, that being the date upon which said cause was set for trial.'

It is well settled that an affidavit for continuance must set out all of the facts to support the application. 8 I.L.E. Criminal Law § 344, p. 402. This requirement contemplates a plain consistent statement of facts, not conclusions, which clearly state the grounds or show sufficient excuse for the delay requested. Conrad v. State (1896), 144 Ind. 290, 294, 42 N.E. 221, 222; Ransbottom v. State (1896), 144 Ind. 250, 254, 43 N.E. 218, 220.

In the Conrad case above cited an affidavit for continuance on the ground of appellant's sickness which allegedly had prevented a proper preparation for his trial was held not sufficiently established by a showing that on the 4th day of Junuary, 1895, appellant was required to remain indoors while under treatment. In such case the trial had been set for January 21st and there was no showing how long appellant's condition required him to be confined indoors.

In Ransbottom v. State (1896), supra, 144 Ind. 250, 255, 43 N.E. 218, 220, an affidavit for continuance alleging appellant could not learn the whereabouts of a witness in time to send a subpoena to Grant County was similarly held insufficient for failing to state the facts as to what appellant did when he first learned the witness was in said Grant County. The court could properly have drawn a conclusion as to such matter if appellant had alleged the necessary facts.

The affidavit for continuance in the instant case after alleging the prosecuting attorney was considering taking a change of venue from the county ² and that the cause would not be tried on January 9, 1961, states:

'That there is not now [6 days before trial] sufficient time for said affiant to adequately prepare a defense in said cause.'

No facts are averred as the basis for this conclusion, such as the location of appellant's witnesses, and what had been done to procure them, or what previous engagements appellant's counsel had in other trials or otherwise that would make it impossible to prepare adequately a defense, as alleged.

However, on the contrary as previously stated, it is undisputed that appellants in this case each had counsel of record for some eight months prior to trial, and no showing has been made that there was not an abundance of time for preparation.

It follows from the failure of appellants to allege facts in the affidavit for continuance to show sufficient cause for the delay requested, we must conclude the court below did not abuse its discretion in overruling the continuance in this case.

We now pass on to a consideration of appellants' second contention on this appeal which is that the court erred in overruling appellants' motion for a directed verdict or for discharge of the jury at the close of the State's first opening statement.

Appellants here make reference to the deputy prosecutor's first opening statement which stated only:

'* * * these defendants were caught red-handed and they were in a room at the American Legion attempting to open a safe. There was a 1952 Nash automobile near the premises * * * in which the Defendants intended to escape. This happened at the American Legion Post Number 24 located at 1016 Washington Street in Columbus, Indiana.'

Appellants cite Burns' § 9-1805 (1956 Repl.), which provides that:

'The jury being impaneled and sworn, the trial shall proceed in the following order:

'First. The prosecuting attorney must state the case of the prosecution and briefly state the evidence by which he expects to support it, and the defendant may then state his defense and briefly the evidence he expects to offer in support thereof.' (Italics added.) Acts 1905, ch. 169, § 260, p. 584; 1909, ch. 96, § 1, p. 257; 1927, ch. 132, § 14, p. 411.

The trial court overruled appellants' motion for a directed verdict or for discharge at the close of the State's first opening statement and permitted the deputy prosecutor to make a second opening statement as follows:

'The State will prove that the Defendants unlawfully, feloniously and burglariously tried to open the upstairs window on the North side of the building at the head of the staircase. It was night time when they did that. That the building is located at Columbus Post No. 24, 1016 Washington Street and designated as the American Legion Post No. 24, Columbus, Indiana. We will do that through witnesses.

'We will also show that the building is situated on the premises located at 1016 Washington Street, which is owned by the American Legion Post No. 24, Columbus, Indiana. We will show that at the time the Defendants entered the building they intended to take, steal and carry away money, goods and valuables of the American Legion Post No. 24, Columbus, Indiana.

'We will show that while in the building the Defendants located the safe and that they attempted by the use of a saw, hammer and screw driver to force that safe open so that they could get whatever valuables were inside of the American Legion Post No. 24, Department of Indiana, Columbus, Indiana. Our evidence will, however, show that their efforts fell short of complete success in getting the goods out because they were caught by members of the Sheriff's Department * * * and members of the Indiana State Police before they managed to get the door of the safe opened. I will point out in connection therewith that the laws of the State defines safe burglary not only as breaking into the safe, but attempting to break into the safe so that the crime is completely consumated [sic] even though their efforts fell short of breaking into the safe and they didn't get any valuables out of the safe. Nevertheless, according to the law in Indiana a crime was committed when they were attempting to break into the safe which was by the means described. We will show that this did not occur until after the American Legion was closed up on the night of May 6th, rather on the morning of May 7th. Our evidence will show that it was at approximately 2:00 o'clock A.M. when the American Legion closed and that these burglars broke in within the next half hour to an hour and a half after that.

'Our evidence will further show that the automobile which I described before was parked by the defendants on Jackson Street which is West of the American Legion and was parked there for the purpose of escaping once they had accomplished their criminal acts inside of the American Legion building. Our evidence will show that all of this happened in Bartholomew County, in the State of Indiana.'

The appellants after the completion of the second opening statement by the State made motion to set aside the submission of the case and to discharge the jury, which was overruled.

It is, of course, true that the opening statement of the prosecuting attorney in a criminal case is intended to inform the jury concerning the questions of fact involved in the case, so as to prepare their minds for...