Hopper v. State

• Decision Date: 25 July 1974
• Docket Number: No. 1--374A46,1--374A46
• Citation: 314 N.E.2d 98,161 Ind.App. 29
• Parties: Wendell HOPPER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 98

314 N.E.2d 98

161 Ind.App. 29

Wendell HOPPER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1--374A46.

Court of Appeals of Indiana, First District.

July 25, 1974.

Rehearing Denied Aug. 27, 1974.

James W. Pendland, Bedford, for appellant.

Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Defendant-appellant Hopper was tried by jury and convicted of Uttering a Forged Instrument. His appeal presents the following issues for review:

1. Whether the trial court erred in overruling appellant's motion to quash.

2. Whether the trial court erred in overruling appellant's motion for change of venue from the county.

3. Whether the trial court erred in overruling appellant's motion for continuance of trial.

4. Whether the trial court erred in overruling appellant's objection to the admission of a check and driver's license into evidence.

5. Whether appellant's conviction is supported by sufficient evidence.

The evidence reveals that on July 18, 1973, appellant entered a tavern in Bedford, Indiana, handed a check to the bartender, and requested that it be cashed. The bartender had previously received information concerning the theft of certain checks from the company upon whose account the check presented by appellant had been drawn. Suspecting that the check presented by appellant was one of those stolen, the bartender left the room under the pretext of seeking the approval of his boss to cash it, and instructed a waitress to call the police. A city police officer arrived at the tavern shortly thereafter.

After being handed the check by the bartender, the officer requested some identification from Hopper, who then produced a chauffeur's license bearing the name Victor E. Hall, as did the check which appellant had presented to be cashed. Appellant was then taken to police headquarters.

During questioning, appellant admitted his true identity and further admitted knowledge of the fact that the check which he had attempted to cash was stolen.

I.

The affidavit upon which appellant was charged reads in relevant part:

'. . . Wendell Hopper, late of said county, did then and there unlawfully, feloniously and knowingly, utter to Fred Dick, an employee of Hobby's Inn owned by Roy Embree, as true and genuine a certain false, forged and counterfeit check for the payment of money, to-wit: One hundred Sixteen dollars and Twenty-four cents ($116.24), said pretended check purporting to have been made and executed by one Thomas Cave, in favor of Victor E. Hall, which said false, forged, and counterfeit check was in the following tenor, viz: a copy of which check is attached hereto and made a part hereof and marked Exhibit 'A', with the intent then and there and thereby to feloniously, falsely, and fraudulently to defraud the said Roy Embree, owner of Hobby's Inn, he the said Wendell Hopper well knowing the said check to be false, forged and counterfeit.'

Appellant moved to quash the affidavit on the grounds that the facts stated therein failed to constitute a public offense or state the offense with sufficient certainty. Error is assigned to the overruling of this motion.

It is true, as appellant contends that IC 1971, 35--1--124--1, Ind.Ann.Stat. § 10--2102 (Burns 1956), defines two separate offenses, being Forgery and Uttering a N.E.2d 132, we stated: (1971), 255 Ind. 542, 265 N.E.2d 701. However, we cannot agree with appellant's assertion that the affidavit in the case at bar fails to distinguish between these offenses.

In Noel v. State (1973), Ind.App., 300 N.E.2d 132, we said:

'Indictments or affidavits need only be so certain and particular as to enable the court and jury to understand what is to be tried and determined and to fully inform the defendant of the particular charge he is required to meet.

'In McCloskey v. State (1944), 222 Ind. 514, 53 N.E.2d 1012, the court, quoting from Edwards v. State (1942), 220 Ind. 490, 44 N.E.2d 304, said:

'It is not necessary that the affidavit be couched in any particular words or phrased in any particular manner, if it is sufficient to advise the defendant of the particular crime with which he is charged, so that he may have an opportunity to prepare his defense."

The affidavit in the case at bar sufficiently identified and charged appellant with the offense of Uttering a Forged Instrument. In this connection, it is important to note that appellant has wholly failed to demonstrate that he was prejudiced or misled in the preparation of his defense.

For the first time in this appeal, appellant also asserts that his motion should have been sustained on the grounds that the affidavit is based upon so-called 'double hearsay.' We need only to respond that such a contention does not fall within the statutory grounds upon which a motion to quash may be predicated. IC 1971, 35--1--23--28, Ind.Ann.Stat. § 9--1129 (Burns 1956). ¹ See also, Johnson v. State (1969), 252 Ind. 70, 247 N.E.2d 212. Further, Ind.Rules of Procedure, Criminal Rule 3(A) provides that any grounds not specified in the memorandum to the motion to quash is deemed to be waived.

We therefore conclude that the trial court did not err in overruling appellant's motion to quash.

II.

Appellant next contends that the trial court abused its discretion in failing to grant his motion for change of venue from the county.

Ind.Rules of Procedure, Criminal Rule 12, provides generally that in cases not punishable by death the court may grant such a motion when in its discretion cause for such change is shown to exist after a hearing or upon such other proof as the court may require.

Appellant's affidavit attached to the motion merely states:

'Wendell Hopper, Defendant in State of Indiana vs. Wendell Hopper, 73 CR 73, being duly sworn on his oath, states and says:

1. That he believes that he cannot receive a fair trial due to the bias and prejudice against him in the County of Lawrence, State of Indiana.

2. That for reason thereof, the above cited case should be transferred to another county in said State in which the Defendant may be tried by disinterested triers.'

Although a hearing was held upon the motion, appellant has failed to cause a transcript of the same to be included in the record on appeal. We are therefore deprived of any basis whatsoever upon which to review the trial court's ruling on the motion for change of venue. We cannot presume that the court abused its discretion. Should we indulge in any presumption, it must be in favor of the court's action. Glenn v. State (1973), Ind.App., 290 N.E.2d 103, citing Hartsfield v. State (1950), 228 Ind. 616, 94 N.E.2d 453.

Further, upon examination of the record, we are convinced that Hopper received a fair and impartial trial.

III.

Appellant next asserts that the trial court abused its discretion in overruling his motion for continuance of trial.

The affidavit upon which appellant was tried was filed in the Lawrence Circuit Court on July 20, 1973. That same date, counsel was appointed to represent appellant.

On August 14, 1973, appellant's counsel petitioned the court for withdrawal of appearance. The petition was granted, and other counsel was appointed to the case on August 17.

On September 7, 1973, appellant appeared in court with his second appointed counsel, waived formal arraignment, and entered a plea of not guilty. Trial of the cause was then set for November 15, 1973.

Two months later, on November 7, 1973, defendant, by counsel, filed his motion for continuance of trial grounded upon an alleged need of extra time in which to complete discovery and seeking leave of the court to take depositions of five persons connected with the cause. The court ordered that the witnesses be deposed on November 9, 1973, and denied the requested continuance.

Thereafter appellant's counsel filed a motion for reconsideration of this ruling to which the court responded, inter alia, that appellant, being unable to make bond, had been continually incarcerated since July 20, 1973, and that if trial was not held as scheduled, appellant might remain incarcerated for an additional two months due to congestion of the court's docket.

On the day the depositions were to be taken, appellant's counsel moved to withdraw his appearance, which motion was granted, and a third attorney was appointed to the cause. Withdrawing counsel was, however, ordered to appear with and assist the newly appointed counsel in the taking of the depositions.

The granting of continuances is generally within the sound discretion of the trial court. Denial of such a motion will not result in reversal absent a clear showing of abuse of discretion. Blevins v. State (1973), Ind., 291 N.E.2d 84; Jay v. State (1965), 246 Ind. 534, 206 N.E.2d 128.

Those cases cited by appellant in his brief wherein defendants were compelled to stand trial almost immediately following appointment of counsel have no application to the instant case. E.g., Hartman v. State (1973), Ind.App., 292 N.E.2d 293 (trial 'a few minutes' following appointment of counsel); Hoy v. State (1947), 225 Ind. 428, 75 N.E.2d 915 (trial same day as appointment of counsel); Lloyd v. State (1960), 241 Ind. 192, 170 N.E.2d 904 (trial two and one half hours following engagement of counsel).

Appellant also cites Sweet v. State (1954), 233 Ind. 160, 117 N.E.2d 745, wherein it was determined that an indigent defendant charged with kidnapping was not afforded sufficient time in which to prepare his defense where trial occurred four days following appointment of counsel.

In the instant case, appellant's second counsel was appointed nearly two months prior to trial. The State produced the names of its witnesses nearly a full month prior to appellant's request for continuance. The witnesses specified by appellant were made available for deposition six days prior to trial. While appellant's second attorney withdrew form the cause six days prior to...