Bryant v. State, No. 1170S264

• Docket Nº: No. 1170S264
• Citation: 256 Ind. 587, 271 N.E.2d 127
• Case Date: July 09, 1971
• Court: Supreme Court of Indiana

Page 127

271 N.E.2d 127 256 Ind. 587 Mitchell BRYANT, Appellant,
v.
STATE of Indiana, Appellee. No. 1170S264. Supreme Court of Indiana. July 9, 1971.
Rehearing Denied Oct. 7, 1971.

[256 Ind. 588]

Page 128

Russel White, Albert W. Ewbank, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., William F. Thompson, Asst. Atty. Gen., for appellee; M. Daniel Friedland, Atty. Gen., Indianapolis, of counsel.

GIVAN, Judge.

Appellant was charged by indictment in two counts, one of rape and the other of incest. Trial by court resulted in a finding of guilty on both charges. The court then sentenced the appellant to the Indiana State Prison for a term of two to twenty-one years on Count 1 and for a like term on Count 2.

The record discloses the following facts:

The prosecuting witness was the fifteen year old stepdaughter of the appellant. She testified that she first had sexual intercourse with the appellant when she was nine years old, and that this activity had continued from time to time until she was fourteen years of age at which time she made a complaint to her aunt, who in turn informed the girl's mother, who made the initial complaint to the prosecuting attorney, which complaint ultimately led to the indictment under which the appellant now stands convicted.

Appellant first claims error in the trial court in that when he arrived for trial on the date previously set by the regular judge, The Honorable John T. Davis, he for the first time discovered that the regular judge was not present and that a judge pro tempore, The Honorable Robert J. Fink, had been appointed to act as judge of the criminal court for that day. Under Burns Ind.Stat., 1968 Repl., § 4--5711, I.C.1971, § 33--9--2--1, a judge pro tempore appointed by the regular judge has the [256 Ind. 589] same power and authority during the continuance of his appointment as the regularly elected judge of the court.

At a prior hearing before the regular judge, The Honorable John T. Davis, the appellant had requested a continuance after having had several prior continuances. At that hearing his request for continuance was granted on the condition stated by the regular judge that there would be no further continuances. However, when faced with the presence of the judge pro tempore, the appellant made a motion for a further continuance, which motion was denied. We hold that under the circumstances this motion was properly denied. Under the statute the judge pro tempore had the right and the duty to perform as the regular judge. There was no showing in the motion for continuance of any cause for the same with the exception of the presence of the judge pro tempore instead of the regular judge. We hold that this in and of itself was not sufficient cause to now hold that the refusal of the continuance was reversible error.

Following the overruling of his motion for continuance, the appellant filed

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a motion for change of judge, the body of which motion reads as follows:

'Comes now the defendant, by counsel, Russel White, and respectfully requests a change of judge from The Honorable Robert Fink.'

This motion does not comply with the Indiana Rules of Procedure CR. 12, which provides that where the applicant first obtains knowledge of a cause for change of judge after the time specified in the ruling, his application for change must be verified by the party himself and specifically allege when the cause was first discovered, how it was discovered and the facts showing the cause for a change. This the appellant did not do. We, therefore, hold that he failed to file a proper motion for change of judge under the rule. Therefore, the trial court did not err in refusing the change of judge.

[256 Ind. 590] The appellant next claims he did not receive a fair trial because during the course of her testimony the prosecuting witness stated that she did not want to testify; whereupon, she was admonished by the trial court that she must answer the questions propounded by the prosecuting attorney or be subject to contempt of court. When the witness persisted in refusing to answer questions, the court found her in contempt and sentenced her to the Juvenile Center for three months and fined her $500 and costs. Following the imposition of this sentence, the witness was again called to the witness stand, whereupon she again stated she did not want to testify but that she would. Whereupon she continued her testimony concerning the sexual relations between her and the appellant. Following her testimony, the court set aside the finding of contempt and the sentence imposed upon the witness. Appellant claims this action on the part of the trial court constituted duress of the witness in violation of her constitutional right against self-incrimination, and that her testimony so extracted was not of such credibility as to support a finding of guilty beyond reasonable doubt of the crime charged. We would first observe that if the witness did in fact have a right to refuse to testify on the ground that it might incriminate her, this right was personal to her and is not available to the appellant either in the trial court or in this Court on appeal. See 58 Am.Jur., Witnesses, §§ 48--49, p. 52.

We do not agree with the appellant that the trial court's forcing of the witness to answer the questions of the prosecutor rendered the answers to those questions unbelievable. In this case the mother of the prosecuting witness had been the initial complainant to the prosecuting attorney's office, yet had taken the witness stand on behalf of the appellant and testified that the prosecuting witness had been guilty of sexual promiscuity for which she and the appellant had punished the witness, and that she knew of no acts of intercourse between the appellant and the witness. There was ample evidence before the trial court from which he could determine that the [256 Ind. 591] pressures on the prosecuting witness to refrain from testifying against the appellant were great, and that her reluctance to testify stemmed from these pressures being exerted by members of her family and did not necessarily relate to the truth or falsity of the accusations. The record discloses that at no time did the trial judge indicate or imply to the witness that she must testify in a certain manner. His sole admonition to her was that she answer the questions of the prosecuting attorney; in this framework of facts, after stating reluctance to testify, the witness did in fact testify against the appellant. We would also observe that at the very beginning of this witness' testimony before she ever stated a reluctance to testify and before any threats whatever of contempt from the trial judge, she stated that she had had sexual intercourse with the appellant.

The appellant also states the trial judge had no jurisdiction to punish the prosecuting witness for contempt, and that

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the only jurisdiction he had was to turn the witness over to Juvenile Court for assessment of punishment for the contempt. With this we do not agree. To so hold would greatly dilute the inherent power of a trial court to preside over the business of that court in a speedy and efficient manner. See In Re Williams (D.D.C.1969), 306 F.Supp. 617; In Re Balucan (1960), 44 Hawaii 271, 353 P.2d 631; Young v. Knight (Ky.Ct.App.1959), 329 S.W.2d 195. We hold that the statute giving Juvenile Court exclusive jurisdiction over juveniles does not apply to a case of direct contempt in another court, and that the court in which the contempt occurs has full power to punish...