Hemphill v. State, No. 678S113

Docket NºNo. 678S113
Citation270 Ind. 590, 387 N.E.2d 1324
Case DateApril 18, 1979
CourtSupreme Court of Indiana

Page 1324

387 N.E.2d 1324
270 Ind. 590
Daniel HEMPHILL, Appellant,
v.
STATE of Indiana, Appellee.
No. 678S113.
Supreme Court of Indiana.
April 18, 1979.

Page 1325

Terry C. Gray, Gary, for appellant.

Page 1326

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted of second degree murder and sentenced to a term of life imprisonment.

[270 Ind. 591] The evidence most favorable to the State indicates that on January 18, 1977, in Gary, Indiana, Ron Deboe and John Muhlberger were working in Wally's Food Store, owned by Muhlberger. Shortly after midnight, three persons entered the store. One of the three, appellant Daniel Hemphill, had been in the store numerous times. Muhlberger ordered Hemphill to leave the store. After Hemphill left Muhlberger told the other two customers that he had thrown Hemphill out of the store because he was a thief. At this, Hemphill again appeared at the door and challenged Muhlberger's accusation. When Muhlberger repeated his statement that Hemphill was a thief, Hemphill said, "Man, I'm going to get you in a dark alley and waste you." Muhlberger then grabbed a billiard cue to chase Hemphill away from the store. Muhlberger followed Hemphill for a short distance down the street, but then turned around and started back to the store. At that point Hemphill appeared from the side of a nearby building with a handgun and was seen firing five rapid shots. Muhlberger was struck in the back and fell to the ground. Muhlberger later died from the bullet wound.

Appellant first argues on appeal that the trial court committed reversible error in overruling his second motion for a continuance. In his first request for a continuance, he had represented to the trial court that a particular witness allegedly vital to his case could be located in 30 days. That motion was granted. His second motion was a request for as much time as possible, again for the purpose of locating this witness. Neither motion complies with IC § 35-1-26-1 (Burns 1979), to any substantial degree. The materiality of the evidence is not shown; no statement is made that due diligence has been used in attempting to locate the missing witness; and the motions are not accompanied by affidavit. Hence, we must adjudge the propriety of the trial court's denial of the second motion by the rule that a motion for a continuance not in accord with the statute lies within the sound discretion of the trial court and will be reversed only when a manifest abuse of discretion is shown. Works v. State (1977) Ind., 362 N.E.2d 144. We hold there was no abuse of judicial discretion in the case at bar. Appellant was granted one continuance to find this witness. His second motion failed to show the necessity of the witness' testimony or the efforts already expended to locate such witness. Under these circumstances, the trial court was well within its discretion in denying appellant's second motion for a continuance.

[270 Ind. 592] Appellant alternatively argues that the trial court erred in failing to grant his request that the court order the prosecutor to stipulate to the testimony of the missing witness. This stipulation was to be based on a prior statement made by this witness. The prosecutor responded that the statement was incomplete, was not subject to cross-examination and constituted hearsay. Hence, he would not agree to any stipulation. The "essence of a stipulation is an agreement of the parties."...

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17 practice notes
  • Kindred v. State, No. 685S224
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1989
    ...is addressed to the trial court's discretion. Drollinger v. State (1980), Ind. , 408 N.E.2d 1228, 1231; Hemphill v. State (1979), [270 Ind. 590] 387 N.E.2d 1324, 1326. However, granting continuances in order to allow more time for preparation is generally not favored without a showing of go......
  • Drollinger v. State, No. 778S146
    • United States
    • Indiana Supreme Court of Indiana
    • August 26, 1980
    ...need to have more time for trial preparation, is addressed [274 Ind. 8] to the trial court's discretion. Hemphill v. State, (1979) Ind., 387 N.E.2d 1324, 1326; Minton v. State, (1978) Ind., 378 N.E.2d 639, 641; Simpson v. State, (1978) Ind., 381 N.E.2d 1229, 1233. See Miller v. State, (1978......
  • Bryan v. State, No. 281S48
    • United States
    • Indiana Supreme Court of Indiana
    • August 11, 1982
    ...is addressed to the trial court's discretion. Drollinger v. State, (1980) Ind., 408 N.E.2d 1228, 1231; Hemphill v. State, (1979) 387 N.E.2d 1324, 1326. However, granting continuances in order to allow more time for preparation is generally not favored without a showing of good cause and wil......
  • Caccavallo v. State, No. 682S234
    • United States
    • Indiana Supreme Court of Indiana
    • June 21, 1982
    ...the appellant has failed to exercise due diligence to obtain the information sought prior to trial. See, Hemphill v. State, (1979) Ind., 387 N.E.2d 1324; Miller v. State, (1971) 256 Ind. 296, 268 N.E.2d Page 778 Appellant claims the trial court erred in denying him a new trial because of th......
  • Request a trial to view additional results
17 cases
  • Kindred v. State, No. 685S224
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1989
    ...is addressed to the trial court's discretion. Drollinger v. State (1980), Ind. , 408 N.E.2d 1228, 1231; Hemphill v. State (1979), [270 Ind. 590] 387 N.E.2d 1324, 1326. However, granting continuances in order to allow more time for preparation is generally not favored without a showing of go......
  • Drollinger v. State, No. 778S146
    • United States
    • Indiana Supreme Court of Indiana
    • August 26, 1980
    ...need to have more time for trial preparation, is addressed [274 Ind. 8] to the trial court's discretion. Hemphill v. State, (1979) Ind., 387 N.E.2d 1324, 1326; Minton v. State, (1978) Ind., 378 N.E.2d 639, 641; Simpson v. State, (1978) Ind., 381 N.E.2d 1229, 1233. See Miller v. State, (1978......
  • Bryan v. State, No. 281S48
    • United States
    • Indiana Supreme Court of Indiana
    • August 11, 1982
    ...is addressed to the trial court's discretion. Drollinger v. State, (1980) Ind., 408 N.E.2d 1228, 1231; Hemphill v. State, (1979) 387 N.E.2d 1324, 1326. However, granting continuances in order to allow more time for preparation is generally not favored without a showing of good cause and wil......
  • Caccavallo v. State, No. 682S234
    • United States
    • Indiana Supreme Court of Indiana
    • June 21, 1982
    ...the appellant has failed to exercise due diligence to obtain the information sought prior to trial. See, Hemphill v. State, (1979) Ind., 387 N.E.2d 1324; Miller v. State, (1971) 256 Ind. 296, 268 N.E.2d Page 778 Appellant claims the trial court erred in denying him a new trial because of th......
  • Request a trial to view additional results

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