Durrett v. State

• Decision Date: 22 September 1966
• Docket Number: No. 30826,30826
• Citation: 219 N.E.2d 814,247 Ind. 692
• Parties: Wilbert R. DURRETT and Charles E. Harris, Appellants, v. The STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 814

219 N.E.2d 814

247 Ind. 692

Wilbert R. DURRETT and Charles E. Harris, Appellants, v. The STATE of Indiana, Appellee.

No. 30826.

Supreme Court of Indiana.

Sept. 22, 1966.

N. George Nasser, Paul M. Messick, Terre Haute, for appellants.

John J. Dillon, Atty. Gen., Kenneth M. Waterman, Deputy Atty. Gen., for appellee.

RAKESTRAW, Chief Justice.

This is an appeal from an action in which both of the appellants were convicted of first degree burglary after a trial to the court. They were each sentenced to the Indiana State Prison for a period of not less than ten years nor more than twenty years, and disfranchised for a period of ten years.

After their conviction, there was a motion to correct an improper sentence, a motion for new trial, and a supplemental motion for a new trial. All of these motions were overruled by the trial court. The motion for a new trial was 24 pages in length and contained 34 alleged specifications of error. The assignment of errors contains eight specifications of error, most of which are duplications of matters set forth in the motion for new trial. For the sake of clarity, the issues will be grouped and taken up in the order as argued in the appellant's brief, and we will consider as waived any specifications of error not argued in the appellant's brief.

I. The appellants first maintain that they should have been discharged because more than three terms of court had elapsed without the fault of the appellants.

On the morning of the trial, the appellants, after court had convened, asked permission to state an oral motion for discharge and to follow it up at a later time with a written motion for discharge. Said motion in essence alleged that the September, 1964 term of court, the November, 1964 term of court, and the February, 1965 term of court had elapsed without the defendants being tried, and without any delay being caused by the defendants. There was some colloquy between court and counsel concerning some agreement as to time of trial. The appellants did not offer any testimony in support of their motion for discharge, and the matter was submitted to the court on the record only.

An examination of the record shows that earlier at various times the defendants filed motions for continuance, a motion to suppress evidence, and a motion for a change of venue from the Judge. After the change of venue was taken from the judge, the defendants discharged their counsel and new counsel were obtained. At the time defendants' counsel withdrew their appearance, the defendants requested time to secure counsel. After the appellants secured new counsel, there was a delay of some indefinite period of time to allow the new counsel to familiarize themselves with the case and to allow the appellants to be out on bond so that they could earn money to pay their counsel. The matter was finally set for trial on October 5, 1964.

On that date, the state filed a motion for continuance because of the unavailability of a witness. The continuance was consented to by the appellants.

Later, on April 6, 1965, when the appellants and their counsel were present in court, the case was again set for trial on June 11, 1965, without any objection. The trial did take place on the latter date.

It is obvious from the record that after a special judge was selected, there were informal arrangements between the special judge and the counsel concerning a trial date. It is a reasonable assumption that these informal arrangements could have continued up to the time the case was set for trial.

It has been held that a defendant in a criminal case need not take the initiative and ask for a trial setting in order to be entitled to a prompt trial. It is the obligation of the court and the state to make appropriate arrangements for trial. Zehrlaut v. State (1951), 230 Ind. 175, 102 N.E.2d 203.

However, it is also true that a defendant seeking discharge under the statute involved (Burns' Ind.Stat.Anno. § 9--1403 (1956 Repl.)) has the burden of alleging and showing that he did not contribute to or cause the delay. Epps v. State (1963), 244 Ind. 515, 192 N.E.2d 459; State v. Beckwith (1944), 222 Ind. 618, 57 N.E.2d 193; Sullivan v. State (Flick v. State) (1939), 215 Ind. 343, 19 N.E.2d 739; Alyea v. State (1926), 198 Ind. 364, 152 N.E. 801, 153 N.E. 775.

If the defendant did not in fact contribute to the delay, it would have been a simple matter to offer testimony showing that he took no action contributing to the delay and showing that there was time during which the case could have been tried. This the appellants did not see fit to do. By going to trial without submitting evidence to establish the necessary facts to entitle them to discharge, the appellants have waived their right to a prompt trial as defined by the relevant statutes.

It is also interesting to note that the appellants did not present their motion to the court prior to the beginning of the trial as required by law. It is only with the cooperation of the court in entering a nunc pro tunc entry that any motion is shown filed prior to the beginning of the trial. Certainly good practice would have dictated that the motion be prepared and filed in advance of the trial date and that testimony be offered in support of such motion before the trial.

II. The appellants next argue that they were sentenced under Burns' Ind.Stat.Anno. § 10--701 (1956 Repl.) and that they should have been sentenced under § 10--705. Section 10--701, supra, reads as follows:

'(a) Whoever breaks and enters into any dwelling-house or other place of human habitation with the intent to commit any felony therein, or to do any act of violence or injury to any human being, shall be guilty of burglary in the first degree, and on conviction thereof shall be imprisoned not less than ten (10) years nor more than twenty (20) years and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.' (Acts 1941, ch. 148, § 4, p. 447.)

Section 10--705, supra, reads as follows:

'Whoever, in the daytime, breaks and enters into any dwelling-house, kitchen, smoke house, outhouse, shop, office, storehouse, warehouse, mill, distillery, pottery, factory, barn, stable, schoolhouse, church, meeting-house or building used for the purpose of religious worship, watercraft, car-factory freight house, station-house, depot, railroad car, interurban or streetcar, with intent to commit the crime of larceny, shall, on conviction, be imprisoned in the county jail not less than ten (10) days nor more than six (6) months, or in the state prison not less than one (1) year nor more than fourteen (14) years.' (Acts 1905, ch. 169, § 375, p. 584.)

This question was first raised by the appellants by filing a 'Motion to Correct Improper Sentence' purportedly under Supreme Court Rule 2--40B after the conclusion of the trial. It was followed by a 'Supplemental Motion for New Trial,' based on the overruling of the 'Motion to Correct Improper Sentence.'

The appellants maintain that since § 10--705, supra, specifically refers to 'in the daytime' that is the more particular statute, and the one which more specifically fits this offense and that therefore the sentence should have been made under this statute.

It has long been settled that it is the province of the Legislature to define criminal offenses and to set the penalties for such criminal offenses. There are many factual situations where a charge could be brought under one of several different statutes. Indeed, on some occasions, charges have been brought in alternative counts with the...