Cody v. State

• Decision Date: 15 December 1972
• Docket Number: No. 471S105,471S105
• Citation: 34 Ind.Dec. 261,259 Ind. 570,290 N.E.2d 38
• Parties: Edmund J. CODY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 38

290 N.E.2d 38

259 Ind. 570

Edmund J. CODY, Appellant, v. STATE of Indiana, Appellee.

No. 471S105.

Supreme Court of Indiana.

Dec. 15, 1972.

Rehearing Denied Feb. 5, 1973.

Dean E. Richards, James Manahan, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen D. Clase, William D. Bucher, Deputy Attys. Gen., for appellee.

GIVAN, Justice.

Appellant was convicted in a jury trial for first degree murder. The record reveals the following facts:

One Flossie Crawley and the appellant had gone together for some period of time prior to the incident in question. The decedent, one William Love, had also gone with Flossie Crawley. Each man had threatened to do bodily harm to the other in vying for the attentions of Miss Crawley.

On the evening of March 14, 1970, the appellant had been in the company of one Mildred Wampler. The couple had visited various taverns in Indianapolis in the course of the evening during which time the appellant had consumed a considerable amount of alcoholic beverage. Miss Wampler testified that she left appellant about 1:30 A.M. on March 15, at which time he was extremely intoxicated. At about 3:30 A.M. the appellant was observed by John C. Nash to enter the White Castle Restaurant located at 720 Massachusetts Avenue in Indianapolis. At that time Flossie Crawley was in the White Castle Restaurant in the company of William Love, the deceased. When the appellant entered the restaurant, he asked to speak to Flossie Crawley. She at first refused but as the appellant persisted, an argument ensued, whereupon the appellant shot Flossie Crawley. At that point William Love attempted to come to Miss Crawley's aid and was in turn shot by the appellant. Miss Crawley's wounds were not fatal, and she was able to identify the appellant as the person who shot her and William Love.

State's Exhibit 3 was identified as a gun which was owned by the appellant. Ballistics' tests on Exhibit 3 disclosed that it was the gun which fired bullets that were recovered from the chest of the decedent, William Love.

Appellant first contends the trial court erred in overruling a motion for discharge because of the failure of the State to provide him a speedy trial as provided under the Ind. Rules of Proc., Rule CR. 4(B) which reads as follows:

'Defendant in jail--Motion for early trial. If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within fifty (50) judicial days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such fifty (50) judicial days because of the congestion of the court calendar. Provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule.'

The record discloses that the indictment charging the appellant with first degree murder was returned by the Marion County Grand Jury on June 4, 1970, at a time when appellant was already in custody. On June 10 the appellant filed a motion for change of venue from the county alleging prejudicial pretrial publicity. Appellant claims in his brief that at that time three motions for an immediate and speedy trial were made. However, we find no reference to such motions in the record before us.

The court overruled appellant's motion for change to a county other than an adjoining county and ordered the appellant and the prosecuting attorney to strike counties adjoining Marion County. The striking resulted in the choice of Johnson County, and on June 22, 1970, the cause was docketed in the Johnson Circuit Court. On June 24 the Johnson Circuit Court set trial by jury for October 28, 1970.

On August 5, 1970, the appellant's attorney filed a handwritten motion for immediate trial wherein it is stated that it is a second such motion. However, we find no previous motion in the record. On August 5 the trial court set the cause for trial on September 4, 1970.

On August 14, 1970, the State filed a motion for a special change of venue in agreement with the earlier contentions of the appellant that the matter should be removed to a more distant venue because of the publicity in Marion County. The appellant represented by counsel joined in said motion. The motion was granted, and the venue changed to the Kosciusko Circuit Court where the cause was filed August 20, 1970.

On September 24, 1970, the appellant filed a motion for discharge for delay in trial under CR. 4. On October 6, 1970, the trial court overruled the motion for discharge, and the cause was set for trial November 15, 1970. The cause was thus tried, and the verdict of the jury rendered November 19, 1970.

Although the appellant contends that he had filed a motion for speedy trial prior to August 5, 1970, we find no such filing in this record. The only motion for speedy trial disclosed by this record was filed on August 5, 1970. Prior to the expiration of the fifty days within which the State had to bring the appellant to trial after August 5, the State filed its motion for special change of venue in which the appellant joined. The appellant does claim that he was not represented by his regular counsel at the time he joined in the change of venue and thus should not be held responsible for such change. However, the record discloses that the appellant was in fact represented by local counsel in Johnson County, and in view of the fact that appellant had previously asked to have the venue changed to a county not adjoining Marion and in view of the fact that the removal of the cause from Johnson to Kosciusko County was calculated solely for the benefit of the appellant, it can hardly be said that local counsel acted contrary to appellant's best interest in agreeing to such change.

The appellant further claims that more than six months had expired from the time of his arrest until his trial, and that for that reason he should have been discharged. In so calculating, the appellant claims he was arrested March 16, 1970. This may well be true; however, the indictment in this cause under which the appellant stands convicted was not filed until June 4, 1970.

The pertinent portion of CR. 4(A) reads as follows:

'No defendant shall be detained in jail on a charge, without a trial, for a continuous period embracing more than six (6) months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge (whichever is later);'

The date of the filing of the charge on June 4, being the later date, governs in this cause. Thus, it appears the time of incarceration of the appellant following the filing of the charge against him in this cause was actually less than five and one-half months.

We, therefore, find the appellant was not entitled to discharge by reason of delay in excess of six months.

Appellant also claims he was entitled to discharge fifty days after the filing of his motion for immediate trial on August 5, notwithstanding the fact the cause was subsequently venued to Kosciusko County in that more than fifty judicial days expired from the time the cause was docketed on August 20, 1970, in Kosciusko County and the date of appellant's trial, which actually began on the 16th dayof November, 1970. However, the motion for immediate trial, which was filed in the Johnson Circuit Court on August 5, was promptly acted upon by that court and the trial set. Subsequent to that time the appellant joined in a motion for change of venue to Kosciusko County, which was granted. When the cause arrived in Kosciusko County, the previous motion for speedy trial had served its purpose.

We find nothing in this record to indicate that the appellant ever filed a motion for immediate trial in the Kosciusko Circuit Court.

We, therefore, hold that when a motion has been made under CR. 4(B), and the trial court has acted on that motion by setting a trial date, the motion will be deemed to have served its purpose. It is, therefore, necessary for the defendant to file a second motion for immediate trial in order to invoke his right under the rule when the trial setting obtained by the defendant must be continued due to his action. To hold otherwise would place the courts in an impossible position of a defendant being permitted to first file a motion for immediate trial, thereby acquiring a trial setting, causing a delay of that trial, then moving for discharge claiming expiration of time. To hold that a single filing of a motion for immediate trial prevails throughout the remainder of the cause, regardless of delay on the part of the defendant, would place the trial courts in a position of impossibility of compliance. See State ex rel. Garvin v. Dearborn, Circuit Court (1972), Ind., 277 N.E.2d 370, 29 Ind.Dec. 51.

We, therefore, hold that appellant was at no time entitled to a discharge because of delay in trial. See Wedmore v. State (1957), 237 Ind. 212, 143 N.E.2d 649.

Appellant next contends there was insufficient evidence to sustain a verdict on the issue as to whether the appellant's degree of intoxication was such as to render him incapable of forming the necessary intent to commit the crime of first degree murder. In support of this contention the appellant cites Brattain v. State (1945), 223 Ind. 489, 61 N.E.2d 462, Booher v. State (1901), 156 Ind. 435, 60 N.E. 156 and Yarber v. State (1962), 242 Ind. 616, 179 N.E.2d 882. In the Yarber case this Court specifically stated at page 618, 179 N.E.2d at page 883:

'While evidence of intoxication is admissible and may by considered in behalf of a person on trial for a crime involving specific intent, it acts as a complete and effective defense only when its degree is such as to render the accused incapable of entertaining the specific intent.'

It is true that in the case at bar...