Bryant v. State, No. 472S38

Docket NºNo. 472S38
Citation261 Ind. 172, 301 N.E.2d 179
Case DateSeptember 17, 1973
CourtSupreme Court of Indiana

Page 179

301 N.E.2d 179
261 Ind. 172
Irene BRYANT, Appellant,
v.
STATE of Indiana, Appellee.
No. 472S38.
Supreme Court of Indiana.
Sept. 17, 1973.

[261 Ind. 173] Richard F. Joyce, Kizer & Neu, Plymouth, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was charged with Murder in the First Degree, and in a trial by jury, she was convicted of Murder in the Second Degree. She was sentenced to imprisonment for not less than fifteen (15) nor more than twenty-five (25) years.

Two issues are raised by this appeal:

1. Whether the defendant should be discharged under Criminal Trial Rule 4, after having been held in jail for more than six months without trial.

2. Whether the trial court erred by permitting cross-examination of the defendant

Page 180

concerning testimony she had given as the defendant in a prior criminal trial.

(1) The denial of the defendant's motion for discharge is affirmed. Although she was not brought to trial until six months and twelve days following the docketing of her case in the Marshall Circuit Court on change of venue, this lapse of time alone is not sufficient to warrant a discharge under Criminal Rule 4. '* * * The six months limitation has been prescribed by this Court as a reasonable time. It is in no sense a constitutional guaranty and is subject to reasonable exceptions, limitations and modifications, as we shall determine necessary to carry out its [261 Ind. 174] constitutional purpose.' Easton v. State (1972), Ind., 280 N.E.2d 307 at 308.

Defendant was entitled to be brought to trial within six months, and she was not required to take affirmative steps to obtain a trial within that period. However, the record discloses that the trial date of September 20, 1971 was selected on June 11, 1971. This was slightly less than three months after docketing in Marshall County and slightly more than three months prior to the deadline fixed by the rule. Although the record does not reflect the presence of the defendant or her counsel in court at the time of the setting (June 11, 1971), counsel acknowledges that he received notice of the trial date by mail in June. He voiced no objection until after the rule time had expired. He is charged with knowledge, from the date he is notified, that the trial date did not fall within the period prescribed by the rule. His failure to object, at the earliest opportunity thereafter, must be regarded as acquiescence therein and a waiver of the right to discharge for such cause. No valid distinction can be made between this and the rule requiring the complaining party to make timely objection, i.e. in time to allow the alleged error to be avoided or correct.

(2) In 1957, the defendant stood trial for second degree murder. In that trial, she claimed self defense and testified to a week of continuous drinking by the deceased and to a series of sexual assaults and beatings. She was acquitted. In the trial of the case at bar, she also claimed self defense and testified to sustained drinking and a series of sexual assaults and beatings by the deceased. Upon crss-examination, the defendant was questioned extensively regarding her testimony from the witness stand in the 1957 trial. The following excerpts from the bill of exceptions in the case now before us are material to our determination.

'Q. Back in 1957, you testified from the witness stand, did you not?

A. Yes, sir.

[261 Ind. 175] Q. Now let me see if I have your story so far pretty well summarized. Harvey came around to your apartment between January 18th and January 26th several times a day.

A. Yes.

Q. Always drinking and on those occasions you were drinking some.

A. Yes, sir.

Q. And back in 1957 you testified that a week prior to the incident involved, you testified to a week of continuous drinking did you not?

A. Yes, sir.

Q. And this time the same case--

MR. JOYCE: Your honor, please, I don't think what happened in 1957 has anything to do with this case. It is immaterial. This particular case, there is no exception to the general rule in regard to this particular testimony. The court has been apprised and I am sure he is familiar with the rules.

Court: I will overrule the objection to that question.

Page 181

A. You mean now--this past January?

Q. Right. The same thing occurred, is that correct?

A. Yes, sir.

Q. And you testified on direct-examination yesterday, I believe it was, that this incident and drinking--both of those occurred in your own home or your own apartment, is that correct?

A. Yes, sir.

Q. And back in 1957, you testified that the drinking and the incident occurred also in hour home, did you not?

A. Yes, sir.'

Transcript, pp. 591--592.

'Q. How many times have you been sexually assaulted in your life?

A. Actually sexuall (sic) assaulted or attempted?

Q. Well, assault implies an attempt, battery implies the complete act. I said assault.

A. None.

Q. Never before this day has anyone attempted to assault you?

A. It has been attempted, yes.

[261 Ind. 176] Q. That's what I ask. How many times has it been attempted.

A. Numerous times.

Q. Give me an estimate.

A. Six-eight.

Q. Four of them occurred the week of January 26th.

A. Before this.

Q. Before this, were any of them before?

A. Six or eight before this.

Q. Back in 1957 didn't you testify that you had been sexually assaulted?

MR. JOYCE: I object.

MR. WALLSMITH: I haven't finished my question.

MR. JOYCE: No, we are right back to where we were before.

MR. WALLSMITH: A proper foundation has been laid for this question.

MR. JOYCE: I don't believe so. I am going to object to any further line of questioning.

Court: Will you approach the bench again?

MR. WALLSMITH: This has been said before and that is the whole purpose of cross-examination. She is giving the same story today.

Court: Read the question.

Reporter: Q Back in 1957 didn't you testify that you had been sexually assaulted?

MR. WALLSMITH: And I haven't finished my question.

MR. MURRAY: We object to this question for the reason it bears too closely upon the possibility of making the defendant a party in a previous crime in which she was not convicted; and further to show the court that the only evidence of prior crimes can be shown only by way of convictions.

Court: I will overrule the objection. You may complete your question.

Q. The question is: Back in 1957 did you not testify that you had been sexually assaulted at least three times?

A. No.

Page 182

MR. JOYCE: Same objection (for the reason it bears too closely upon the possibility of making the defendant a party in a previous crime in which she was not convicted).

Court: Overruled.

[261 Ind. 177] Q. Back in 1957 did you testify that you had been sexually assaulted.

A. That it was attempted.

Q. And di (sic) you testify how many times you were?

A. I don't remember that far back.

Q. Now, during the week from January 18th of (sic) January 26th, 1971, did you testify yesterday that Harvey Caudill pulled your hair, beat you, hit you in the back of your head on numerous occasions?

A. Yes.

Q. How many times did this occur in that particular span of time?

A. I didn't keep track of them.

Q. Well, you testified as to every matter of every day just about. How many times--you can have a minute to search your mind.

A. About every time he would come.

Q...

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52 practice notes
  • Mayes v. State, No. 2--1172A110
    • United States
    • Indiana Court of Appeals of Indiana
    • November 13, 1974
    ...Error had been overruled. The following reasoning of the Utterback decision is binding upon this court: 'In Bryant v. State (1973), Ind., 301 N.E.2d 179 and in Layton v. State (1973), Ind., 301 N.E.2d 633, we held that under Criminal Rule 4 it was incumbent upon the defendant to protest, at......
  • Hornaday v. State, No. 49A02-9301-PC-2
    • United States
    • Indiana Court of Appeals of Indiana
    • August 22, 1994
    ...limitations and modifications, Page 312 as we shall determine necessary to carry out its constitutional purpose.' " Bryant v. State (1973) 261 Ind. 172, 301 N.E.2d 179, 180, quoting Easton v. State (1972) 258 Ind. 204, 280 N.E.2d 307, Of Accord, Loyd v. State (1980) 272 Ind. 404, 398 N.E.2d......
  • Gubitz v. State, No. 3--375A38
    • United States
    • March 1, 1977
    ...correct the alleged error. The failure to so object constitutes a waiver of the right to discharge for such cause. Bryant v. State (1973), 261 Ind. 172, 301 N.E.2d McCraney next contends that the trial court erred in proceeding to trial when the name of the informer was not disclosed until ......
  • Collins v. State, No. 3--1273A176
    • United States
    • Indiana Court of Appeals of Indiana
    • January 23, 1975
    ...established that CR 4, while intended to implement speedy trial, is not itself a constitutional guarantee. Bryant v. State (1973), Ind., 301 N.E.2d 179; Easton v. State, supra. Its violation does not, then present a question of fundamental Therefore, since no objection was made to the trial......
  • Request a trial to view additional results
52 cases
  • Mayes v. State, No. 2--1172A110
    • United States
    • Indiana Court of Appeals of Indiana
    • November 13, 1974
    ...Error had been overruled. The following reasoning of the Utterback decision is binding upon this court: 'In Bryant v. State (1973), Ind., 301 N.E.2d 179 and in Layton v. State (1973), Ind., 301 N.E.2d 633, we held that under Criminal Rule 4 it was incumbent upon the defendant to protest, at......
  • Hornaday v. State, No. 49A02-9301-PC-2
    • United States
    • Indiana Court of Appeals of Indiana
    • August 22, 1994
    ...limitations and modifications, Page 312 as we shall determine necessary to carry out its constitutional purpose.' " Bryant v. State (1973) 261 Ind. 172, 301 N.E.2d 179, 180, quoting Easton v. State (1972) 258 Ind. 204, 280 N.E.2d 307, Of Accord, Loyd v. State (1980) 272 Ind. 404, 398 N.E.2d......
  • Gubitz v. State, No. 3--375A38
    • United States
    • March 1, 1977
    ...correct the alleged error. The failure to so object constitutes a waiver of the right to discharge for such cause. Bryant v. State (1973), 261 Ind. 172, 301 N.E.2d McCraney next contends that the trial court erred in proceeding to trial when the name of the informer was not disclosed until ......
  • Collins v. State, No. 3--1273A176
    • United States
    • Indiana Court of Appeals of Indiana
    • January 23, 1975
    ...established that CR 4, while intended to implement speedy trial, is not itself a constitutional guarantee. Bryant v. State (1973), Ind., 301 N.E.2d 179; Easton v. State, supra. Its violation does not, then present a question of fundamental Therefore, since no objection was made to the trial......
  • Request a trial to view additional results

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