Johnson v. State, 1268S203

• Decision Date: 30 July 1970
• Docket Number: No. 1268S203,1268S203
• Citation: 254 Ind. 465,260 N.E.2d 782
• Parties: Claude JOHNSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 782

260 N.E.2d 782

254 Ind. 465

Claude JOHNSON, Appellant, v. STATE of Indiana, Appellee.

No. 1268S203.

Supreme Court of Indiana.

July 30, 1970.

Keith C. Reese, Indianapolis, for appellant; Rocap, Rocap, Reese & Young, Indianapolis, of counsel.

Theodore L. Sendak, Atty. Gen., James F. Biddle, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

This is an appeal from a criminal action based upon an affidavit charging appellant with assault and battery. The defendant was convicted on May 13, 1968 as charged.

The first question presented for our consideration on this appeal is the refusal of the trial court to grant the appellant a continuance. The defendant's counsel orally moved the court for a continuance on the day of the trial. The motion was based upon the alleged illness of one of trial counsel, there being two. The motion was not supported by affidavit and was denied by the trial court. After the trial and conviction, defendant filed a motion for a new trial and accompanied the same by affidavits, the body of which read as follows:

'WILBUR H. DYE, being first duly sworn upon his oath says:

1. That he is an attorney at law, being duly admitted to practice in the Courts of the State of Indiana, including the Superior Court of Morgan County, Indiana.

2. That he is a partner with one Ralph Lett, also an attorney authorized and qualified to practice law in the Courts of the State of Indiana, including the Superior Court of Morgan County, Indiana.

3. That one Claude Johnson did retain Ralph Lett to represent him as an attorney in the case of 'State of Indiana -vs- Claude Johnson, Cause No. S68--S232' pending in the Superior Court of Morgan County, Indiana.

4. That said case was set for trial, and tried, on May 13, 1968. That on the date of said trial, the said Ralph Lett was hospitalized and was unable for that reason, to prepare for and appear in said Court to defend the said Claude Johnson.

5. Prior to the commencement of said trial, on said date, the affiant did move the Court for a continuance of said trial for the reason that the said Ralph Lett, Claude Johnson's attorney, was hospitalized and unable to appear and defend the said Claude Johnson. The Court overruled said Motion for Continuance and the affiant was required and forced to attempt and defend the said case, being unacquainted with the facts thereof.

6. The affiant further states that he did advise said Claude Johnson prior to the commencement of the trial of said cause, that he need not contact or produce in Court on the said May 13, 1968, any witnesses because he was certain that under the circumstances of his duly retained attorney being ill, that said continuance would be granted. When the Court overruled the motion for continuance, neither the affiant nor Claude Johnson had sufficient time to contact, confer with and produce witnesses on behalf of said defendant at said trial.

7. Because of the facts set forth in this affidavit, the affiant was forced to defend the said Claude Johnson without proper and adequate preparation and without the defendant, Claude Johnson being able to produce in Court any evidence on his own behalf.

WILBUR H. DYE

WILBUR H. DYE'

'RALPH M. LETT, being first duly sworn upon his oath, says:

1. That he is an attorney at law duly qualified and admitted to practice in the Courts in the State of Indiana, including the Superior Court of Morgan County, Indiana.

2. That prior to May 13, 1968, he was retained and engaged by one Claude Johnson to represent him in a cause of action entitled 'State of Indiana -vs- Claude Johnson' Cause No. S68--S232 in the Superior Court of Morgan County, Indiana.

3. That said case was set for trial by the Morgan Superior Court on May 13, 1968, and that on said date of said trial, the affiant was hospitalized and unable to appear in said Superior Court of Morgan County to defend the said Claude Johnson.

RALPH M. LETT

RALPH M. LETT'

The affidavits filed with the motion for a new trial cannot enhance the position of the appellant when he made his oral motion for a continuance prior to the commencement of the trial. The court at the time of this ruling had only the appellant's oral motion and nothing else upon which to base its ruling. When a motion for a continuance is made on other than statutory grounds or is not made in conformity with the statute, the granting of such a continuance rests within the sound discretion of the trial court, absent a clear showing of abuse of discretion. Jay v. State (1965), 246 Ind. 534, 206 N.E.2d 128, 207 N.E.2d 501, reh. den. 246 Ind. 539, 207 N.E.2d 501.

The matters alleged in appellant's affidavit with the motion for a new trial do not appear in the record to have been urged upon the court at the time the oral motion was made prior to the trial. The affidavits do not state the time of the commencement of the hospitalization of appellant's attorney, how much time the appellant had to retain new counsel, or whether appellant was unable to get counsel. Neither do the affidavits show why the application for a continuance was not made more promptly and some time before the trial date. In such a case, if a continuance had been denied, appellant would have had sufficient time to have gotten his witnesses for trial, as originally set. We find no abuse of discretion on the part of the trial court in denying the continuance.

The appellant next contends that the court, over objections, erroneously permitted the State to introduce evidence of an assault and battery by the appellant upon one Forrester, which occurred about two weeks prior to the assault and battery charged in this case. The State points out that the objection was not made at the time the questions were asked and that the only objection was that it was 'what happened two weeks before,' which is not a sufficient reason or ground in itself. The colloquy between counsel and the court brought out the contention of the State that there was a 'pattern' with reference to the prior assault and battery by appellant on Forrester and the alleged assault and battery here. Following the overruling of appellant's objection, Forrester testified as follows:

'A. Well I was back there at the restroom and he come in there and he was talking about the Union--and I said, 'Claude, maybe one of these days everybody will join, I don't know', and I started around and walked out and he hit me, and that was the end of it.

Q. And you are not a member of the Union, is that correct?

A. No.

Q. And Mr. Gibson is not a member of the Union?

A. That's right.

Q. What capacity does Mr. Johnson serve with the Union?

A. The President.

Q. And did you strike him at all on that occasion?

A. No--I just let it go.

Q. Where did he hit you at?

A. He hit me in the nose.'

The evidence shows that at the time there was considerable ill-will and hard-feelings existing between certain employees over a labor representation election. The evidence brought out that the appellant was active in making his views known. It was the contention of the State that appellant was attempting to intimidate those opposing his views.

It is urged that the appellant, upon taking the witness stand, had no greater privileges than any other witness, and upon cross-examination he openly and freely admitted he had attacked Forrester two weeks prior over the union election and had the same feeling of enmity towards the prosecuting witness. However, in our opinion, we do not need to support the admissibility of this evidence on that basis.

Motive is always relevant in the proof of a crime. The evidence here shows that the prosecuting witness Gibson took the same view as Forrester with reference to the union representation election and that appellant was fully aware of their opinions. It has been said:

'As a general rule, evidence of separate, independent and distinct offenses committed by the defendant is competent and admissible to show his motive with respect to the offense charged. More particularly, such a rule is applied where the other offenses are of a similar nature, and are related to the offense charged, where the act constituting the crime under investigation has been established and where motive is in issue.'

8 I.L.E. Criminal Law § 226.

Here the conduct of appellant toward Forrester was closely connected in character and manner with the alleged assault and battery on Gibson. Both were unprovoked...