Franks v. State, No. 374S65

• Docket Nº: No. 374S65
• Citation: 323 N.E.2d 221, 45 Ind.Dec. 618, 262 Ind. 649
• Case Date: February 18, 1975
• Court: Supreme Court of Indiana

Page 221

323 N.E.2d 221 262 Ind. 649 Paul Eugene FRANKS, Jr., Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 374S65. Supreme Court of Indiana. Feb. 18, 1975.
Rehearing Denied April 15, 1975.

[262 Ind. 652]

Page 223

Joseph A. Williams, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Gary M. Crist, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was indicted on two counts of first-degree murder: Count 1, felony murder; Count 2, pre-meditated murder. Trial by jury resulted in a verdict of guilty on both counts. Appellant was sentenced to life imprisonment on each count of murder.

The following is shown by the record: On September 26, 1965, at about 10 minutes before midnight, the Appellant and a companion, Danny Schrader, entered the Kwiki Market in Fort Wayne, Indiana. The only person in the store at the time was Robert Glenn Benedict, the night manager. The Appellant and Schrader took approximately Six Hundred Dollars ($600.00) in cash and forced Mr. Benedict to accompany them. They drove to a deserted lane where Schrader tied Benedict's hands behind his back. Benedict was then forced to walk into a nearby cornfield where he was shot by the Appellant. After Benedict had fallen, Appellant continued to shoot at him until the gun was empty. Appellant reloaded the gun and Schrader then fired several shots into Benedict's body.

On the day after the robbery and murder, Appellant and Schrader picked up Bentley Zieg and drove to Detroit, Michigan. On the way, Appellant told Zieg of the murder and robbery of the night before. Benedict's body was not discovered until October 1, 1965.

After investigation, Robert Groves, a member of the Fort Wayne Police Department, interviewed the Appellant at the Indiana Boys' School on January 14, 1966. Groves testified [262 Ind. 653] that he showed the Appellant photographs of Benedict's body and that the Appellant became very nervous and frightened.

Appellant first claims the trial court erred in overruling a motion to dismiss. The argument is based on IC 31--5--7--13 (Burns' Ind.Stat.Ann.1973), which provides in part that if a complaint of a criminal nature is made or pending in a court other than a juvenile court, that on ascertainment that the person was under the age of eighteen (18) years at the time of the alleged offense, the defendant must be transferred to the juvenile court, except, however, when the person is charged with a capital offense he need not be so transferred. At the time the crime was committed, the Appellant was sixteen (16) years of age.

He points out that at the time of his trial there was no death penalty in Indiana, citing Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. He thus claims that the trial court was without jurisdiction to proceed and that he should have been transferred to the juvenile court. Cummings v. State (1969), 252 Ind. 701, 251 N.E,2d 663, 19 Ind.Dec. 68. This matter has recently been considered by this Court and decided contrary to Appellant's position. Martin v. State (1974), Ind., 314 N.E.2d 60, 43 Ind.Dec. 88. In that case, this Court stated:

'. . . (O)ur task here is one of interpreting the legislative intent embraced in a 1945 Act fixing the jurisdiction of the juvenile courts. We do not believe that the opinions in Furman and Adams (Adams v. State, Ind., 284 N.E.2d 757) can be legitimately viewed as expressions of legislative intent on the issue of jurisdiction between court systems. It is apparent that the language in the 1945 Act

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referring to the death penalty was a definitional method of excluding certain persons who committed certain types of especially heinous offenses from the purely rehabilitative approach of the juvenile system. We believe it is clear from the statutory scheme of the Juvenile Court Act that the reference to the death penalty was intended to designate a certain group of crimes rather than a certain type of punishment. The subsequent decisions of the United States and Indiana Supreme Courts declaring the present use of the death penalty to be unconstitutional cannot be held [262 Ind. 654] as affecting this underlying legislative decision.' 314 N.E.2d at 67, 43 Ind.Dec. at 95.

We, therefore, hold the trial court did not err in overruling Appellant's motion to dismiss.

Appellant next claims the trial court erred in not giving him credit for time served, citing IC 35--8--2.5--1, Burns' Ind.Stat.Ann. (1974 Supp.) § 9--1828. This statute reads as follows:

'When sentencing any person convicted of a crime the sentencing court shall order that the sentenced person be given credit toward service of his sentence for any days spent in confinement as a result of the criminal charge for which setence is imposed or as a result of the conduct on which such charge is based. The court shall specify in its order of commitment the number of days credit to which the person sentenced is entitled pursuant to this section. (IC 1971, 35--8--2.5--1, as added by Acts 1972, P.L. 219, § 1, p. 1002.)'

The State urges that part of the time for which Appellant seeks credit was spent in jail as a result of another offense and therefore should not be allowed. The record shows that Appellant was arrested on October 13, 1971 for this offense and that sentence was imposed March 23, 1973. Further, the record indicates that between his arrest and the beginning of his trial, Appellant was granted a continuance for the purpose of defending himself in another proceeding wherein he was tried...