Jackson v. State, 28937

• Decision Date: 25 May 1953
• Docket Number: No. 28937,28937
• Parties: JACKSON v. STATE.
• Court: Indiana Supreme Court

Page 433

112 N.E.2d 433

232 Ind. 453

JACKSON v. STATE.

No. 28937.

Supreme Court of Indiana.

May 25, 1953.

Howard R. Hooper, Indianapolis, for appellant.

J. Emmett McManamon, Atty. Gen., John Ready O'Connor, William T. McClain, Thomas J. Falconer, III, Deputy Attys. Gen., Edwin K. Steers, Atty. Gen., for appellee.

BOBBITT, Chief Justice.

Appellant was charged by affidavit in three counts, with the offenses of burglary in the second degree, automobile banditry and grand larceny. The original affidavit was filed May 18, 1949, amended November 5, 1949, and subsequently amended November 24, 1951, by adding thereto count four which charged appellant with burglary in the second degree, and further charged that he had been twice convicted and imprisoned in penal institutions in the state of Indiana.

Count four of the affidavit, as amended, omitting formal parts, is as follows:

'Be It Remembered, That, on this day before me, Frank H. Fairchild, Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came Daniel T. Veza, who, being duly sworn, upon his oath says that Perry Jackson alias Harry L. Smith alias Donald Kirk, on or about the 11th day of May, A. D. 1949, at and in the County of Marion and in the State of Indiana, did then and there unlawfully, feloniously and burglariously break and enter into the building and storeroom owned and operated by Joel E. Baker and Maxine J. Baker, doing business as Bakers Liquor Store, situated at 443 North Highland Street, City of Indianapolis County of Marion, which said building and storeroom was not then and there a part of any dwelling and was not a place of human habitation with the intent to commit a felony therein, to-wit: unlawfully and feloniously to take, steal and carry away the goods, chattels and personal property of said Joel E. Baker and Maxine J. Baker, doing business as Bakers Liquor Store, 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.

'The affiant aforesaid, upon his oath aforesaid, further says that heretofore, to-wit; that on or about the 25th day of April, A.D. 1938 the said Perry Jackson alias Donald Kirk was charged in a certain criminal action in the Criminal Court of Marion County and State of Indiana, in an action in the Criminal Court entitled: State of Indiana vs. Perry Jackson alias Donald Kirk, with the commission of a felony, namely, Second Degree Burglary, being known as Cause No. 71956, and that the said Perry Jackson alias Donald Kirk, on or about the 28th day of April, 1938, was brought before the Criminal Court of Marion County, State of Indiana, and that on said date and in said Court, the defendant said Perry Jackson alias Donald Kirk, plead guilty to said charge, and that upon said plea, the Judge of Criminal Court of Marion County, State of Indiana, found the said Perry Jackson alias Donald Kirk, guilty as charged in said affidavit, and that the said Perry Jackson alias Donald Kirk was convicted on the charge of Second Degree Burglary and sentenced and imprisoned in Indiana Reformatory of the State of Indiana by the judgment of said Criminal Court of Marion County, State of Indiana, for said offense of Second Degree Burglary for a term of two (2) to five (5) years and that there was no appeal from the judgment of the said Criminal Court of Marion County, State of Indiana, and that said judgment remained in full force and effect. The Indiana Reformatory of the State of Indiana being a penal institution for felonies; and that the said Perry Jackson alias Donald Kirk, convicted as aforesaid in the Criminal Court of Marion County, State of Indiana, and the said Perry Jackson alias Harry L. Smith alias Donald Kirk, the defendant, herein is one, identical and the same person.

'The affiant aforesaid, upon his oath aforesaid, further says that heretofore, to-wit: on or about the 7th day of March, A.D. 1944, the said Perry Jackson was charged in a certain criminal action in the Criminal Court of Marion County, State of Indiana, the same being Cause No. CR. 772, and being entitled: State of Indiana vs. Perry Jackson, with the commission of a felony, namely, Second Degree Burglary, and that the said Perry Jackson, appeared in the Criminal Court of Marion County, State of Indiana, on or about April 16, A. D. 1944, and plead guilty to said charge, and that upon said date, and on the plea of guilty, the said Perry Jackson was found guilty by the Judge of the Criminal Court of Marion County, State of Indiana, and the said Perry Jackson was convicted, sentenced and imprisoned in the Indiana State Prision of the State of Indiana, the same being a penal institution for felonies by the Judge of the Criminal Court for Marion County, State of Indiana, for said offense of Second Degree Burglary for a term of two (2) to five (5) years, and that the judgment aforesaid of the Criminal Court of Marion County was never appealed from and said judgment remains in full force and effect and that said Perry Jackson convicted as aforesaid in said Marion County Criminal Court, County of Marion, State of Indiana, and Perry Jackson, alias Harry L. Smith alias Donald Kirk, herein is one, identical and the same person.

'The affiant aforesaid, upon his oath aforesaid, further says that by reason of premises as hereinbefore specifically set out the said Perry Jackson alias Harry L. Smith alias Donald Kirk, defendant herein, has been twice convicted and imprisoned in the penal institutions of the State of Indiana as heretofore specifically enumerated for felonies by him committed, 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.'

There errors are assigned.

1. The overruling of appellant's motion for a new trial.

2. The overruling of appellant's motion in arrest of judgment.

3. That the judgment of the trial court is void and of no force and effect.

Appellant's motion for a new trial contains seven specifications or grounds therefor.

We shall consider these in the order of their importance.

First: By specification 4 appellant asserts that the trial court erred in overruling his motion for discharge because two terms of court had passed 'before or since the affidavit charging him with being an habitual criminal was filed and during all of said time he was confined in jail, awaiting trial.' Appellant's motion for discharge asserts that he was detained in the Marion County jail 'on the charges herein' for a continuous period of more than two terms of court before the affidavit 'now on file against him was first filed;' that he had been detained in jail without a trial for a period of two years and six months embracing a period of more than two terms of court; and that the delay in appellant's trial was not due to any act or fault of his.

The part of Acts 1927, ch. 132, § 12, p. 411, being § 9-1402, Burns' 1942 Replacement, applicable here is as follows:

'And 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 motion, or the delay was caused by his act, or where there was not sufficient time to try him during such terms: * * *.'

The terms of the Marion Criminal Courts commence on the first Mondays of January and July of each year, and each term continues for six months. Acts 1919, ch. 187, § 1, p. 748, § 4-2309, Burns' 1946 Replacement.

Appellant was arrested and confined in the Marion County jail on May 11, 1949, and was in jail at the time the original affidavit was filed against him on May 18, 1949 in the January term, 1949.

Since appellant was in jail at the time the affidavit was filed the discharge statute, § 9-1402, supra, would not commence to run in his favor until the July term, 1949.

It is shown by the record that the delay in appellant's trial was caused in the July term, 1949; the January term, 1950; the July term, 1950; and the July term, 1951, either by a continuance on his own motion or by some other act on his part.

Appellant has failed to sustain the burden of showing that his trial was not delayed by any act of his for a continuous period embracing more than two terms of court after the term in which the affidavit was filed. It was not error under the circumstances herein to overrule appellant's said motion for discharge.

Second: By specification 1 of his motion for a new trial, appellant asserts that the trial court erred in overruling his verified motion for a change of venue from the county. The granting of a change of venue from the county in prosecutions for felonies not punishable by death, is within the sound discretion of the trial court. Kennedy v. State, 1936, 209 Ind. 287, 295, 196 N.E. 316; Pindell v. State, 1925, 196 Ind. 175, 181, 147 N.E. 711; Conrad v. State, 1896, 144 Ind. 290, 295, 43 N.E. 221.

Appellant's affidavit for a change of venue alleged that he could not have a fair trial in Marion County, Indiana, because of excitement and prejudice against him and in support of this allegation filed, as Exhibits 'A' and 'B' to the petition, certain articles which had appeared in the Indianapolis News between March 1 and 4, 1952. The state filed counter affidavits of twenty-six persons saying that they had read the said newspaper articles and that they had incurred no bias or prejudice against appellant by reason thereof, nor did they know of any existing within Marion County. This situation presented an issue of fact to be determined by the trial court and its ruling thereon is conclusive on appeal. Kennedy v. State, 1936, 209 Ind. 287, 295, 196 N.E. 316, su...