Dickens v. State, No. 1270S295

Docket NºNo. 1270S295
Citation260 Ind. 284, 295 N.E.2d 613, 36 Ind.Dec. 275
Case DateMay 03, 1973
CourtSupreme Court of Indiana

Page 613

295 N.E.2d 613
260 Ind. 284
Jane Frances DICKENS, Appellant,
v.
STATE of Indiana, Appellee.
No. 1270S295.
Supreme Court of Indiana.
May 3, 1973.

[260 Ind. 286]

Page 615

Vance M. Waggoner, Rushville, for appellant.

Thoeodore L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by Jane Frances Dickens, appellant (defendant below) from a conviction in the Morgan Superior Court for murder in the second degree. The appellant was charged with second degree murder by the Morgan County Grand Jury on January 19, 1970. Appellant filed a motion for change of venue from the judge on March 3, 1970, and upon granting of the motion, the Honorable Sidney H. Showalter, Judge of the Bartholomew Superior Court, was selected as Special Judge. Thereafter, appellant filed a motion for change of venue from the county, which was denied. She was tried by a jury which returned a verdict of guilty on June 12, 1970. On June 18, 1970, appellant was sentenced to the Indiana Women's Prison for not less than fifteen (15) nor more than twenty-five (25) years. A motion to correct errors was filed and overruled, resulting in this appeal.

Appellant presents three major specifications of error:

(1) The trial court's lack of jurisdiction over the defendant-appellant;

(2) Defendant-appellant's denial of a fair trial; and

(3) Insufficiency of the evidence to sustain a conviction for murder in the second degree.

Appellant contends that the trial court had no jurisdiction over her for the following reasons: (1) her arrest was illegal; (2) the Grand Jury was improperly constituted; and (3) the court incorrectly entered a plea of not guilty. We find no merit in any of these arguments.

[260 Ind. 287] This Court has consistently held that the legality of an arrest only has relevancy on appeal when the admissibility of evidence obtained pursuant to an illegal arrest is an issue in the case. Farmer v. State (1971), Ind., 275 N.E.2d 783; Wells v. State (1971), Ind., 267 N.E.2d 371. No such issue is before this Court.

Furthermore, we have held that an illegal arrest in and of itself neither affects the validity of a conviction for a crime nor dispossesses the trial court of jurisdiction. Dickens v. State (1970), 254 Ind. 388, 260 N.E.2d 578.

Appellant challenged the composition of the Morgan County Grand Jury arguing that medical doctors, dentists and lawyers have been systematically excluded. Upon a hearing the trial court overruled

Page 616

the appellant's plea in abatement. The only ground for sustaining the plea in abatement presented by the appellant was the bare allegation found therein. The appellant totally failed to adduce any evidence in support of her allegation. Therefore, the trial court was correct in overruling the appellant's plea in abatement.

Appellant's contention that the trial court erroneously entered a plea of not guilty on her behalf is specious. IC 1971, 35--1--24--2 (Ind.Ann.Stat. § 9--1202 (1956 Repl.)) establishes the procedure regarding pleas when the defendant fails to plead at the appropriate time.

'If a defendant stand mute or refuse to plead to an indictment of affidavit, a plea of not guilty must be entered by the court and the trial proceeds.'

In this case the trial court, immediately after announcing that appellant's plea in abatement was overruled, requested that appellant enter a plea. She declined to do so. The trial court accordingly entered a plea of not guilty. Therefore, the trial court acted in strict accordance with the terms of the above-mentioned statute by entering such a plea.

Appellant has clearly failed to demonstrate that the trial court lacked jurisdiction over her person.

[260 Ind. 288] Appellant alleges that the trial court erred in overruling her motion for change of venue from Morgan County. As a result, she contends, she was denied a fair trial due to the pervasive atmosphere of prejudice and excitement extant in the county.

In 1970 CR. 12 provided for one change of venue as a matter or right in all cases punishable by death. In all other cases the granting of changes of venue from the county are within the sound discretion of the trial court and must be predicated upon a showing of good cause. The rule further requires a hearing of relevant facts to evaluate the merits of such a motion and to determine whether good cause has been established.

This Court has consistently held that in order to establish good cause for a discretionary change of venue, an adequate showing of bias and prejudice must be made. Burton v. State (1973), Ind., 292 N.E.2d 790; Brown v. State (1969), 252 Ind. 161, 247 N.E.2d 76. That is to say, the defendant must produce evidence of community bias or prejudice sufficient to convince the trial judge that the defendant cannot obtain a fair trial in that county.

Specifically, the appellant alleges that she could not be tried by disinterested jurors because of eight newspaper articles appearing in the Martinsville Daily Reporter prior to trial, the sheriff's alleged enmity toward appellant's counsel and remarks made by the Judge of Morgan Superior Court concerning the instant case prior to trial, which unfortunately were broadcast by a local radio station.

The issue before this Court is whether the appellant has made a sufficient showing of community bias to justify the granting of a new trial.

We believe the aforementioned newspaper articles to be generally innocuous in character, and therefore clearly not prejudicial or inflammatory. The first article announcing appellant's arrest, appeared on January 9, 1970. The last [260 Ind. 289] article appeared on February 18, 1970. The trial commenced June 11, 1970--almost four months after the appearance of the last article. For the most part, the articles were nothing more than pure news accounts of the preliminary proceedings, e.g., 'Sheriff Witness before Jury,' 'Grand Jury Still in Session,' 'Plea in Murder Case Continued.' It should be noted that under these headlines--none of which were overly bold or banner-type--appeared news of other...

To continue reading

Request your trial
42 practice notes
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Abril 1978
    ...bias sufficient to convince the trial judge that he cannot obtain a fair trial in that particular county. Dickens v. State, (1973) 260 Ind. 284, 295 N.E.2d 613." Daniels v. State, (1976) 264 Ind. 490, 493, 346 N.E.2d 566, In Daniels and in Jarver v. State, (1976) Ind., 356 N.E.2d 215, we to......
  • Stevens v. State, No. 79S00-9507-DP-828
    • United States
    • Indiana Supreme Court of Indiana
    • 31 Diciembre 1997
    ...to prevent deliberation, premeditation, to exclude malice, and to render the defendant incapable of cool reflection." Dickens v. State, 260 Ind. 284, 293, 295 N.E.2d 613, 618 (1973); see also Clark v. State, 668 N.E.2d 1206, 1209 (Ind.1996). Appellant points to parts of Mark Stevens' testim......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Mayo 1981
    ...bias or prejudice sufficient to convince the trial court that he cannot obtain a fair trial in that county. Dickens v. State, (1973) 260 Ind. 284, 295 N.E.2d Here the publicity was typical newspaper coverage at the time of the arrest of the subjects. Nearly eleven months later, on November ......
  • Parsons v. State, No. 2--1272A138
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Diciembre 1973
    ...in refusing to accept defendant's tendered guilty plea.' (Emphasis added.) 300 N.E.2d at 661. See also, Dickens v. State (1973), Ind., 295 N.E.2d 613; United States v. Bednarski, 445 F.2d 364 (1st Cir. Furthermore, the trial court judge is not bound by any promises or recommendations made p......
  • Request a trial to view additional results
42 cases
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Abril 1978
    ...bias sufficient to convince the trial judge that he cannot obtain a fair trial in that particular county. Dickens v. State, (1973) 260 Ind. 284, 295 N.E.2d 613." Daniels v. State, (1976) 264 Ind. 490, 493, 346 N.E.2d 566, In Daniels and in Jarver v. State, (1976) Ind., 356 N.E.2d 215, we to......
  • Stevens v. State, No. 79S00-9507-DP-828
    • United States
    • Indiana Supreme Court of Indiana
    • 31 Diciembre 1997
    ...to prevent deliberation, premeditation, to exclude malice, and to render the defendant incapable of cool reflection." Dickens v. State, 260 Ind. 284, 293, 295 N.E.2d 613, 618 (1973); see also Clark v. State, 668 N.E.2d 1206, 1209 (Ind.1996). Appellant points to parts of Mark Stevens' testim......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Mayo 1981
    ...bias or prejudice sufficient to convince the trial court that he cannot obtain a fair trial in that county. Dickens v. State, (1973) 260 Ind. 284, 295 N.E.2d Here the publicity was typical newspaper coverage at the time of the arrest of the subjects. Nearly eleven months later, on November ......
  • Parsons v. State, No. 2--1272A138
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Diciembre 1973
    ...in refusing to accept defendant's tendered guilty plea.' (Emphasis added.) 300 N.E.2d at 661. See also, Dickens v. State (1973), Ind., 295 N.E.2d 613; United States v. Bednarski, 445 F.2d 364 (1st Cir. Furthermore, the trial court judge is not bound by any promises or recommendations made p......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT