Colglazier v. State, 28928

• Decision Date: 23 January 1953
• Docket Number: No. 28928,28928
• Citation: 231 Ind. 571,110 N.E.2d 2
• Parties: COLGLAZIER v. STATE.
• Court: Indiana Supreme Court

Page 2

110 N.E.2d 2

231 Ind. 571

COLGLAZIER v. STATE.

No. 28928.

Supreme Court of Indiana.

Jan. 23, 1953.

James D. Allen, Salem Robert W. Davis, Corydon, for appellant.

J. Emmett McManamon, Atty. Gen., William T. McClain, Dep. Atty. Gen. and John Ready O'Connor, Dep. Atty. Gen., for appellee.

BOBBITT, Judge.

On January 4, 1951, an affidavit was filed in the Harrison Circuit Court charging the appellant with reckless homicide. On the same day appellant waived arraignment, entered a plea of not guilty and posted a recognizance bond.

On March 5, 1951 the cause was, on motion of the state, set for trial on March 19, 1951. Thereafter, on March 6, 1951, appellant withdrew his plea of not guilty and filed a motion to quash the affidavit. This motion was set for oral argument on March 17, 1951, and on March 19, was sustained by the court. The state immediately filed an amended affidavit and the cause was, over appellant's objection, reset for trial on March 27, 1951. The court continued to hold appellant under the recognizance bond filed in the January term. On March 21, 1951, appellant filed an affidavit for a change of venue from the county, which was denied by the court on March 24, 1951. Appellant then immediately filed an affidavit for a change of judge. This was granted and a special judge was selected on the same day the affidavit for change was filed. He qualified on the last day of the March term, 1951, and the case was set for trial on May 28, 1951.

On May 24, 1951 the state filed an affidavit for change of judge. This change was granted May 28, 1951, and the case referred to the regular judge for further proceedings.

On September 4, 1951 the regular judge submitted a list of three counties from which to strike for a change of venue from the county. Thereafter the judge discovered his error and on September 28, 1951 submitted a list of three names consisting of one circuit judge and two attorneys from which to select a new special judge.

On November 5, 1951 the state struck the name of one of the attorneys from the list, and on November 14, 1951 an erroneous entry on the court's minute book was corrected after the error had been called to the attention of the court by appellant's attorney. Subsequently, on November 24, 1951, appellant struck the name of the circuit judge. The Honorable Robert R. Kelso, an attorney of Floyd County, Indiana, was then selected and thereafter qualified as special judge on November 30, 1951, at which time he set the case again for trial on January 15, 1952.

At the time of trial in January of 1952 appellant filed his verified motion to dismiss the action because of delay, which motion, omitting the formal part thereof, is as follows:

'Comes now the above named Alvin R. Colglazier, defendant in the above entitled matter, and moves the court to dismiss said action because of delay for the following reasons.

'That during the March Term, 1951 of the Harrison Circuit Court an amended affidavit for Reckless Homicide was filed against this defendant to which affidavit the defendant waived arraignment, entered a plea of not guilty, and was continued under bond he had posted during the January Term 1951 of said Court.

'That he stood without trial for a period embracing more than three (3) terms of said court excluding the March 1951 Term of said Court, said terms being the May, September and November Terms 1951 of said court.

'That no continuance has been had during said three terms of Court on the motion of this defendant.

'That no delay has been caused by the act of this defendant during said terms of Court.

'Wherefore, defendant moves the Court that he be discharged and his bondsmen released and for all other just and proper relief.'

The court's record was the only evidence introduced at the hearing on said motion. The motion to dismiss was overruled and the case proceeded to trial by jury resulting in a finding of guilty.

The sole error assigned is the overruling of appellant's motion to dismiss because of delay.

The statute upon which appellant relies is Acts of 1905, ch. 169, § 220, p. 584, § 9-1403, Burns' 1942 Replacement, and provides as follows:

'No person shall be held by recognizance to answer an indictment or affidavit without trial for a period embracing more than three (3) terms of court, not including the term at which a recognizance was first taken thereon, if taken in term time; but he shall be discharged unless a continuance be had upon his own motion, or the delay be caused by his act, or there be not sufficient time to try him at such third term; and, in the latter case, if he be not brought to trial at such third term, he shall be dischanged, except as provided in the next section.'

This statute will be strictly construed and all doubts resolved in favor of the accused.

Zehrlaut v. State, 1951, 230 Ind. 175, 102 N.E.2d 203; State v. Kuhn, 1900, 154 Ind. 450, 453, 57 N.E. 106; Ewbank's Indiana Criminal Law, 2d Ed. § 437, p. 288.

The terms of...