Harbaugh v. State

• Citation: 234 Ind. 420,126 N.E.2d 576
• Decision Date: 18 May 1955
• Docket Number: No. 29238,29238
• Parties: Roy Ellis HARBAUGH, Appellant, v. The STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 576

126 N.E.2d 576

234 Ind. 420

Roy Ellis HARBAUGH, Appellant, v. The STATE of Indiana, Appellee.

No. 29238.

Supreme Court of Indiana.

May 18, 1955.

Palmer K. Ward, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Deputy Atty. Gen., for appellee.

HENLEY, Chief Justice.

Appellant was charged jointly with another, by affidavit, charging the commission of a felony, to wit:

'Be It Remembered, That, on this day before me, Frank H. Fairchild, Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came William Owen, who, being duly sworn, upon his oath says that Charles Robert Jett and Roy Ellis Harbaugh on or about the 23rd day of October, A.D., 1952, at and in the County of Marion in the State of Indiana, did then and there unlawfully, feloniously, forcibly, by violence and putting Father Francis Early in fear, take from the person and possession of the said Father Francis Early, money then and there of the value of nine hundred ($900.00) dollars in lawful money, which property the said Father Francis Early then and there lawfully held in his possession and was then and there the property of the Holy Spirit Catholic Church, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.' (Tr. p. 8).

In his brief the appellant apparently waives any challenge as to sufficiency of the evidence to sustain his conviction, but bases his sole claim for reversal on his motion to dismiss in the trial court, based on his bitter complaint, that his rights were violated in contravention of art. 1, § 12 of the Constitution of the State of Indiana, providing that accused persons are entitled to a trial 'speedily, and without delay.' Appellant complains further that his case falls within the terms of § 9-1402, Burns' 1942 Repl., Acts 1905, ch. 169, § 219, p. 584, Acts 1927, ch. 132, § 12, p. 411, which, omitting formal parts, reads as follows:

'* * * no defendant shall be detained in jail, without a trial, on an indictment or affidavit, for a continuous period embracing more than two (2) terms after his arrest and commitment thereon; or if he was in jail at the time the indictment was found or affidavit filed, more than two (2) terms after the term at which the indictment was found or the affidavit first filed; except where a continuance was had on his act, or where there was caused by his act, or where there was not sufficient time to try him during such terms.'

Appellant's motion to dismiss, pleading the constitutional provisions, coupled with the foregoing act, and omitting formal parts, reads as follows:

'Comes now the above named defendant, and moves the Court that the said cause of action be dismissed, and that the defendant be discharged, and for said motion says:

'1. That more than two (2) terms of court have passed since the said affidavit was filed against this defendant, which does not include the term at which recognizances was first taken thereon; that the delay in the prosecution of said cause was not caused, either directly or indirectly, by the act of this defendant nor by his attorney in his behalf, but the delay was caused by the State only.

'2. That pursuant to Section 9-1402, Indiana Statutes, this defendant is entitled to be discharged from said prosecution.

'Wherefore, the defendant prays the court that the said Motion to Dismiss and Discharge be sustained, and for all other further, proper, and complete relief in the premises.' (Tr. p. 31).

No demurrer for insufficient facts, or other dilatory motions, were addressed by the state to the motion to dismiss and it was heard on its merits before the trial Judge. There was conflict in the evidence in that hearing. A fair resume of the same is as follows: An order book entry for January 6, 195o of the Court reads:

'And afterwards towit January 6th 1953 being the 2nd Judicial day of the January Term 1953 of said Court, before fore the Honorable Harry O. Chamberlin Judge thereof the following further proceedings were had herein towit:

'Comes now the defendant Roy Ellis Harbaugh by Symmes & Taylor, his counsel and file written Motion for continuance, which motion is in the words and figures following:

'(Missing From Files)

'and trial of cause is continued.' (Tr p. 13).

On the other hand appellant testified he never moved for a continuance himself, but that he did consent to a continuance on one occasion to give the state the chance to correspond with Pennsylvania authorities on a hold order received from them, charging appellant as an alleged parole violator in that state. His two attorneys each testified that neither filed any written motion for continuance. The one present in court with appellant on January 6, 1953 was of the impression he made no oral motion to be later reduced to writing, said: 'Well my recollection isn't very good' (Tr. p. 100), and that he thought the continuance was on behalf of the state to enable it to check the alleged parole violation in Pennsylvania and in connection with some discussion with the deputy prosecutor of the acceptance of a plea of guilty. This attorney also testified: 'I do remember that conversation was had, but I don't remember who requested a continuance or if the defendant agreed to it or what.' (Tr. p. 100). Under this condition of the evidence the court could have found some evidence to support either the appellant's contention or that of the appellee, State of Indiana. The trial court chose to accept the evidence of the state by evidence in chief and cross-examination of appellant's witnesses in preference to that of the appellant. The solemn order book entry alone certainly constituted some substantial evidence of probative forec if not controlling. In a situation closely similar to the one presented here this court held in effect that the order book entry would control. Todd v. State, 1948, 226 Ind. 496, 81 N.E.2d 530, 81 N.E.2d 784, 82 N.E.2d 407. McMillan v. Plymouth Electric Light & Power Co., 1919, 70 Ind.App. 336, 123 N.E. 446.

There is no more fundamental rule of appellate practice than that providing that this court, as a court of review, will not weigh facts passed on by a judge or jury below where there is any substantial or reasonable evidence of probative force to support the trial tribunal, which has practical advantages over this court of review in this respect, inasmuch as the trial court hears and sees the evidence, observes the witnesses and their demeanor on the witness stand. This court will not deviate from its fundamental rule, notwithstanding its frequent examination of the record itself, to make sure an injustice is not being done, especially where a question of constitutional rights appears. This is, of course, optional and discretionary with this court in unusual situations and only to make sure an injustice below...