Certain v. State, 671S189

• Decision Date: 31 August 1973
• Docket Number: No. 671S189,671S189
• Citation: 261 Ind. 101,300 N.E.2d 345,38 Ind.Dec. 346
• Parties: Dale L. CERTAIN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 345

300 N.E.2d 345

261 Ind. 101

Dale L. CERTAIN, Appellant, v. STATE of Indiana, Appellee.

No. 671S189.

Supreme Court of Indiana.

Aug. 31, 1973.

Samuel E. Beecher, Jr., Terre Haute, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.

GIVAN, Justice. ^*

Appellant was charged by affidavit in two counts: Count I, unlawful possession of a narcotic drug, and Count II, unlawful possession and control of a narcotic drug with intent to barter, exchange, sell and dispense to another. The substance which appellant was alleged to have had in his possession was marijuana, which at that time was included in the narcotic drug statute. IC 1971 35--24--1--1(14)(a), Burns' Ind.Stat.Ann., 1971 Supp., § 10--3519(14)(a). A 1971 amendment to the statute excluded 'cannabis' from the list of narcotic drugs. Trial by jury resulted in a finding of guilty as to Count I. He was accordingly sentenced to the Indiana State Reformatory for a period of not less than two nor more than ten years and fined $1,000.

The record reveals the following evidence:

At approximately 12:30 P.M. on October 20, 1970, Detective Lloyd Heck of the Indiana State Police and nine other police officers went to the home of appellant near Rockville, Indiana, with a search warrant. Upon arriving at the house, the officers first announced their presence by stating, 'Police Department.' Then an officer entered the home through a back door. This officer unlocked the front door and let the remaining officers in.

The search warrant was first read to the appellant, then a search in the downstairs area of the house revealed a box of prepared marijuana leaves. At that time the appellant stated, 'What you're looking for is upstairs.' The officers went to the upstairs area where they found approximately sixteen pounds of marijuana in sacks for drying.

The appellant was given the usual constitutional warnings, after which he told the officers that he had picked the marijuana near South Bend and brought it to his home to cure.

Appellant first attempts to raise for the first time on appeal issues which were not included in his motion to correct errors. These issues are: 1) that he was inadequately represented by counsel; 2) that his arrest warrant was not based on a proper probable cause hearing; 3) that the search warrant should have been suppressed as not being based on sufficient probable cause and as being improperly served; 4) that IC 1971 35--24--1--1(14)(a), Burns' Ind.Stat.Ann., 1971 Supp., § 10--3519(14)(a) is unconstitutional in that it is too vague and uncertain. Inasmuch as these questions were not presented to the trial court they will not be considered by this Court under Ind.Rules of Proc., Rule TR. 59(G) IC 1971, 34--5--1--1 and Rule CR. 16.

Appellant next argues that the trial court erred in refusing a change of venue from the county when, during the trial, the local newspaper published a series of articles on drug abuse. However, appellant has made no claim nor pointed to anything in this record to indicate that the article mentioned the appellant or his pending trial. There is no indication that any juror read the articles or that if any did read them, they were prejudiced thereby. There is nothing in this record to indicate that the trial court abused his discretion in denying appellant's motion for change of venue.

Appellant next urges that the trial court erred in refusing to reduce his bond from $10,000. Such is not a proper issue on an appeal on the merits.

At the time the trial court ruled on appellant's petition to reduce bail, that portion of the case had terminated, and the trial court's decision on that issue was a final judgment which was appealable. Bozovichar v. State (1952), 230 Ind. 358, 103 N.E.2d 680.

At this stage of the proceedings, the question of the amount of bail only becomes pertinent if this case is to be reversed and returned to the trial court for further proceedings. However, even in that event this Court will not presume to pass on such a question unless the evidence heard on appellant's petition for reduction of bail is brought into this record by a special bill of exceptions. See Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641.

Appellant next argues the court erred in giving State's Instruction No. 2, which reads as follows:

'I submit this case to you, with the confidence that you will faithfully discharge the grave duty resting upon you, bearing in mind that the liberty of the accused is not to be trifled away, nor taken by careless or inconsiderate judgment, but if after a careful consideration of the law and the evidence in the case, you are satisfied beyond a reasonable doubt that the defendant, Dale L. Certain is guilty, you should return your verdict accordingly. Duty demands it and the law requires it. You must be just to the defendant and equally just to the State. As manly, upright men and women charged with the responsible duty of assisting the Court in the administration of justice, you will put aside all sympathy and sentiment, and look alone to the law and the evidence in the case, and return into court such a verdict as is warranted thereby.'

It is appellant's contention that the above instruction mandated the jury to return a verdict for the State. A reading of the instruction, however, shows that it requires the jury to be fair to both the State and the defendant and to render a verdict in accord with the evidence and the law. We hold that State's...