Carlin v. State, 769S161

Citation254 Ind. 332,259 N.E.2d 870
Decision Date01 July 1970
Docket NumberNo. 769S161,769S161
PartiesCecil Eugene CARLIN, Frank Leroy Carlin, Appellants, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Charles V. Livengood, Richmond, for appellants.

Theodore L. Sendak, Atty. Gen., Edward Squier Neal, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Chief Justice.

Appellants were charged jointly by affidavit with the crime of second degree burglary. Upon pleas of not guilty, appellants were tried before a jury in the Wayne Circuit Court. Upon a finding of guilty as charged, both appellants were sentenced to the Indiana State Prison for a period of not less than two (2) nor more than five (5) years and were disfranchised and rendered incapable of holding any office of profit or trust for a term of five (5) years.

In this appeal, appellants assign as error the overruling of their amended motion for new trial. In that motion appellants raise several points which shall be dealt with in the order presented. Although necessary only to the last point argued we shall first briefly review the evidence most favorable to the state.

On the evening of February 11, 1967, one Mrs. Myers, the night cleaning lady at the Dille-McGuire Manufacturing Company, was performing her various cleaning duties at the plant when at approximately 2:00 A.M. she noticed the front panel of a cigarette vending machine, located on the first floor, down and the money box sitting outside. Upon making this discovery she promptly called the personnell manager who in turn instructed her to call the 'dispenser man'. At about this same time she heard a strange noise on the second flood whereupon she immediately called the personnel manager a second time; he instructed her to call the police, which she did.

Mrs. Myers opened one of the plant entrances for the police upon their arrival and directed them to the second floor. Two policemen walked the stairs to the second floor and down an aisleway towards the employees' area. The lead officer, Officer Kolentis, first heard conversation originating near the employees' area and observed one man attempting to pry a vending machine open with a tool he had in his hands. A few feet away he saw a pair of welding tanks, welding equipment, a tarpaulin and a light flashing underneath the tarpaulin.

After observing the scene for about a minute Kolentis' presence was discovered by one of the appellants, Frank Carlin, who had turned to grab a container of milk. Kolentis ordered appellant Frank Carlin to raise his hands and turn around and face the machines. At this point, appellant Cecil Carlin raised up from underneath the tarpaulin where he had apparently been using a torch on a lock from one of the vending machines.

Both appellants were handcuffed on the scene and escorted to the first floor and subsequently to the county jail. Officer Geiger toured the plant and located several vending machines which had been pried open and the money boxes removed. A dollar bill change machine had been removed from its location on the second floor and was found in the elevator. Its face was burned off and that money box had also been removed. Fifty-four one dollar bills were recovered from the persons of appellants. Further investigation disclosed a broken window on the south side of the plant which the police surmised to be the point of entry.

It is first contended that appellants were denied a fair trial in that the trial court erred in denying appellants' third motion for continuance. The record indicates that the public defender was originally assigned to defend the case on February 14, 1967 appellants being without funds to retain counsel. Subsequent thereto, appellants did acquire the necessary funds and retained one James Trimble who filed a motion for continuance on January 23, 1968, two days prior to the date set for trial. The motion was granted but as a result of Trimble's death, the Public Defender was re-assigned to the defense of the case and trial was set for June 24, 1968.

A second motion for continuance was filed and granted to attorney Robert Delaney who took the case on June 21, 1968; the trial date was re-set for July 10, 1968. On July 5, 1968, appellants filed their third motion for continuance which omitting formal captions reads as follows:

'COMES now attorney Robert J. Delaney, on behalf of the above defendants, and moves the Court to continue this cause of action with trial date of July 10, 1968, by reason of the death of defendant's former attorney, James M. Trimble and the recent (6--21--68) entrance of this defense counsel into this case.'

It is the overruling of this petition which is here alleged as error. Appellants concede that the granting of such a continuance not based on statutory grounds is within the sound discretion of the trial court. Calvert v. State (1968), Ind., 239 N.E.2d 697; Ward v. State (1965), 246 Ind. 374, 205 N.E.2d 148; Souerdike v. State (1951), 230 Ind. 192, 102 N.E.2d 367. It is their contention, however, that under the circumstances of this case, the denial of the petition was a manifest abuse of such discretion.

The only case cited by appellants to substantiate their claim in this regard is the case of Sweet v. State (1954), 233 Ind. 160, 117 N.E.2d 745 where this court held that the fundamental right of each defendant in a criminal case to have competent counsel carried with it as a necessary corollary the right that such counsel have adequate time to prepare a defense. The facts in that case, however, differ substantially from the facts in the case at bar. In Sweet the court appointed pauper counsel just four days prior to the date set for trial notwithstanding the fact that the defendant had entered a request for such an appointment one full week earlier. This essentially left the defendant's counsel three days to prepare for trial, one of which was a Sunday. Here, counsel had eighteen full days to prepare for the trial and although we do not hold absolutely that such a time period would always be sufficient time for trial preparation we note that appellants failed to state grounds or show sufficient excuse for the delay requested. See Blume v. State (1963), 244 Ind. 121, 189 N.E.2d 568. Petitions for a continuance are not to be favored and will only be granted in the furtherance of justice on the showing of proper grounds. Calvert v. State, supra. Consequently we are unable to hold under the facts in this case that the denial of appellants' petition was an abuse of discretion.

The second point argued by appellants is that they were interrogated before being advised of their constitutional rights in violation of the express holding of Escobedo v. Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. An examination of the record discloses that Captain Geiger testified for the state on direct examination as to observations made by him of the second floor employees' area following the apprehension of appellants. He then returned to the first floor where appellants were being temporarily held and elicited the statements complained of:

'Q. All right. Then did you go downstairs with the defendants?

A. Yes.

Q. What did you do down there?

A. When they went in this office there, I had some conversation with the two subjects, and then during the process I had shaken them down for weapons or anything like that, and then in their right shirt pockets were some one dollar bills and I asked them, 'Is this your money, or did it come out of the machine?' and they stated that it wasn't theirs, but they didn't say where it came from.'

On cross-examination appellant was questioned on the circumstances of the 'interrogation' as follows:

'Q. Captain Geiger, prior to questioning the defendants, did you advise them of their right to remain silent and hire an attorney?

A. I didn't question them about anything what was involved only the personal things they had on them.

Q. Did you advise them of their rights?

A. No.

Q. Did you proceed to ask them questions about items they had on them?

A. Just the money. That's all.

Q. Wouldn't you say that the point of interrogation had focused on the defendants at that time? I mean the point that they were suspected of a crime at that time?

A. The only reason for the search was after they was arrested to see what contents they had on them and this came up with it.

Q. I'm aware of that. But you did not advise them that they had the right to remain silent?

A. No.'

Notwithstanding the above testimony, we do not believe the mandates of Escobedo and Miranda to be here in issue. No objection was made to the introduction of the evidence either at trial or by a pre-trial motion to suppress. As we recently held in the case of Hardin v. State (1970), Ind., 257 N.E.2d 671, under such circumstances the issue is not preserved...

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