Holguin v. State, 170S14

• Citation: 256 Ind. 371,269 N.E.2d 159
• Decision Date: 05 May 1971
• Docket Number: No. 170S14,170S14
• Court: Supreme Court of Indiana
• Parties: Ceasar HOLGUIN, Appellant, v. STATE of Indiana, Appellee.

Page 159

269 N.E.2d 159

256 Ind. 371

Ceasar HOLGUIN, Appellant, v. STATE of Indiana, Appellee.

No. 170S14.

Supreme Court of Indiana.

May 5, 1971.

W. Henry Walker, Walker & Holtan, East Chicago, for appellant.

Theodore L. Sendak, Atty. Gen. of Ind., Lon D. Showley, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

This is an appeal from the Lake Criminal Court. Appellant was charged by affidavit with Rape and Rape While Armed, but was prosecuted only as to Rape While Armed. A trial by jury commenced on September 15, 1969, resulting in a verdict of guilty as charged.

The facts surrounding this case indicate that on July 16, 1968, the prosecuting witness left the home of her parents in East Gary, Indiana, at about 10:30 p.m. with Robert Djurich, a friend of hers. After driving around for a period of time, the couple decided to go swimming, arriving at Marquette Park beach around 11:45 p.m. While swimming, they heard noises and voices coming from the area where they had left a blanket lying on the beach. As they approached that area, they saw some people standing around their blanket, going through the clothing that had been left on it.

One of the boys in the group proceeded to ask Djurich for money and then accused him of lying and produced a gun which was held on the couple when Djurich replied that he had no money on him. Brandishing the gun, one of the boys ordered the couple to take their bathing suits off, adding that he would not hesitate to kill both of them if they did not go along with what was demanded of them.

As soon as the couple disrobed, two of the boys grabbed the victim by the arms and dragged her about thirty feet, where she was forced to the ground. The boys then satisfied their desires while Djurich was held at gunpoint by the assailants. The victim identified the appellant, Ceasar Holguin, as crawling on top of her at one point. Recognizing him as a friend of her brother who had once been over to her house, she called him by name, frightening him such that he got up and ran. Eventually an approaching automobile frightened the attackers and they ran.

Appellant first argues on appeal that he was subjected to excessive bail in contravention of his constitutional rights. We need not determine here whether the bail set for the appellant was excessive because this matter is now moot. It should have been considered through a habeas corpus proceeding, not on appeal to this Court, after a trial where appellant was found guilty. Green v. Petit, Sheriff (1944),222 Ind. 467, 54 N.E.2d 281.

Appellant next argues that another change of venue should have been granted. On September 13, 1968, a Special Judge qualified pursuant to a motion previously filed by the defendants for a change of venue from the judge of the Lake Criminal Court. On April 4, 1969, the appellant filed for a second change of venue from the Special Judge, alleging that since the Special Judge had heard some of the facts in the case from appellant's co-defendants who pleaded guilty, the appellant could no longer receive a fair trial from this judge, since some of the evidence pertained to the appellant. This Court will grant second changes of venue only where the judge is clearly biased and prejudiced. Pollard v. State (1969), Ind., 250 N.E.2d 748; State ex rel. Gannon, etc. v. Porter Circuit Ct. et al. (1959), 239 Ind. 637, 159 N.E.2d 713. In this case, the trial was before a jury, and hence we conclude that the fact that the judge had previously heard evidence about the case on a plea of guilty would not necessarily preclude the appellant from receiving a fair trial. There is no showing that any prejudice on the part of the trial judge existed during the proceedings.

Appellant was arraigned and pleaded not guilty on October 11, 1968. After continuances were requested by the appellant in January, 1969, the court set the date for trial as January 23, 1969. The appellant contends that he was detained in jail without a trial from January 23, 1969, to July 23, 1969, said period constituting six months, and therefore under Supreme Court Rule 1--4D he was entitled to be discharged. However, we note from the record that on March 21, 1969, the appellant moved the court for a continuance which was in fact granted until May 22, 1969. Thus, a continuance being granted on appellant's own motion, he cannot claim the benefit of Rule 1--4D.

The defendant filed a motion to 'Withdraw Plea and To Make Proper Motion to Quash' on the grounds that there was no probable cause hearing pursuant to Kinnaird v. State (1968), 251 Ind. 506, 242 N.E.2d 500 and State ex rel. French v. Hendricks Superior Court (1969), Ind., 247 N.E.2d 519. The appellant, other than citing the above cases, makes no further contention on the point involved.

At common law the issuance of a warrant for arrest is not necessary where the arresting officer has reliable information that a felony has been committed. In this case the victim, who was raped, informed the police and they made the arrest. We know of no more reliable information. In our opinion, it makes no difference whether the warrant was issued before or after the arrest, as under the circumstances in this case where the suspect was being sought and was likely to flee.

The cases cited (Kinnaird and State ex rel. French, supra) are based upon the case of Giordenello v. United States (1958), 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503. The question arose in that case solely on the issue of whether or not evidence obtained (narcotics) in a search based on the arrest was admissible in evidence. Otherwise, a question of whether an arrest is legal or illegal has no relevancy in a trial, unless it is the basis of a search and the admissibility of evidence so obtained is questioned. There are other remedies, such as habeas corpus, to prevent illegal detention on arrest of individuals without probable cause.

In the case before us, no question is raised about the admissibility of any evidence resulting from any search following the alleged arrest. If the appellant had thought the arrest was made without probable cause, he could have asked for a hearing on that issue, as is done when the issue of admissibility of evidence illegally obtained through a search without probable cause is heard. However, we point out that if probable cause actually existed, such a hearing as to illegality of the arrest might be futile and serve no meritorious cause since, if probable cause existed for the filing of the charge of rape, as here, a warrant might immediately again be issued upon showing of probable cause. The cases are overwhelming, not only in this state, but in other states, that an officer may arrest for a felony upon reliable hearsay without any warrant being issued whatever. 5 Am.Jur.2d, Arrest § 46; 6 C.J.S. Arrest § 6.

Appellant contends that the trial court erred in giving its own instruction to the jury based on the 1965 statute describing the Commission of or Attempt to Commit a Crime While Armed with a Deadly Weapon rather than the appellant's instruction which was based on a subsequent statute. There is authority substantiating the position of the State that the subsequent revision or repeal of an act does not prevent the prosecution from continuing with an action based upon the original version of that act. McDaniel v. State (1925), 196 Ind. 654, 149 N.E. 161; State v. Lewis (1924), 195 Ind. 344, 145 N.E. 496. The maximum penalty that may be assessed under the 1969 amendment is more severe than under the 1965 statute. If the 1969 amendment had been deemed controlling, appellant would have been able to object to it as imposing a more severe penalty than the 1965 statute under which the crime was committed.

Appellant also contends that the trial court erred in ordering the appellant and his counsel to stand up and be identified to the jury on voir dire, over appellant's objections, while at the same time, the court denied appellant's motion that the prosecutrix be present in court for a similar identification by the jury. The only reason appellant gives as constituting error is that this decreased the possibility that those witnesses testifying against the appellant would err in identifying the appellant. We do not recognize this as error inasmuch as the State had a right to know if any of the prospective jurors knew the appellant. The prosecutrix had no reason to be in the courtroom during the selection of the jury. There was no error when the court refused to order her to appear and stand before the jury for the purpose of identification. As to the argument that witnesses would be less apt to err in identifying the appellant, we point out that the appellant could have requested that they be removed from the courtroom, if there indeed were any witnesses in said courtroom during the selection of the jury.

The appellant alleges that the court erred in giving certain instructions. We find however, upon examination, that appellant only...