Johnson v. State

• Decision Date: 09 July 1974
• Docket Number: No. 272S15,272S15
• Citation: 313 N.E.2d 535,262 Ind. 164
• Parties: Leon JOHNSON and Arthur B. Clough, also known as Frank L. Farlow, Appellants (Defendants Below), v. The STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 535

313 N.E.2d 535

262 Ind. 164

Leon JOHNSON and Arthur B. Clough, also known as Frank L Farlow, Appellants (Defendants Below), v. The STATE of Indiana, Appellee (Plaintiff Below).

No. 272S15.

Supreme Court of Indiana.

July 9, 1974.

Rehearing Denied Aug. 20, 1974.

Vance M. Waggoner, Rushville, for appellants.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

This is an appeal by Leon Johnson and Arthur B. Clough from a conviction for inflicting injury in the commission of robbery. Trial was by jury and appellants were sentenced to life imprisonment. A motion to correct errors was timely filed and overruled. This appeal followed.

Although this case involves a now substantially amended criminal rule, the holding is clearly applicable to that amended rule. CR. 4(C), as amended by this Court on December 17, 1973, effective February 1, 1974, reads as follows:

'Defendant discharged. No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later. Any defendant so held shall, on motion, be discharged.'

Appellants' major allegation of error is that they were entitled to discharge pursuant to CR. 4(A). CR. 4(A)--Discharge for Delay in Criminal Trials--read in pertinent part as follows prior to the aforementioned amendment:

'Defendant in jail. No defendant shall be detained in jail on a charge, without a trial, for a continuous period embracing more than six (6) months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge (whichever is later); 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 period because of congestion of the court calendar . . .' (Emphasis added.)

In order to determine whether a CR. 4(A) discharge was applicable in the instant case, we must look to the record and those facts most favorable to the State.

On October 10, 1969, the appellants were arrested and on October 11, 1969, were charged with robbery in Marion Municipal Court. Upon the motion of appellants, the preliminary hearing was continued to November 13, 1969. On April 14, 1970, an affidavit was filed in Marion Criminal Court, Division Two, charging both appellants with robbery and armed robbery. Appellants moved to discharge pursuant to CR. 4(A) on May 25, 1970, which motion was overruled July 23, 1970. Thereafter, on June 5, 1970, an affidavit was filed in Marion Criminal Court charging both appellants with inflicting injury in the commission of a robbery.

After a series of continuances (initiated by the appellants), the April 14, 1970, robbery charge and the June 5, 1970, inflicting injury charge were nolled on August 21, 1970. The affidavit, upon which the appellants were convicted, was filed on August 21, 1970, charging them with robbery and inflicting injury in the commission of robbery. The cause was then venued to Rush County. On February 22, 1971, appellants filed their motion to discharge which was overruled.

CR. 4(A) required that criminal defendants, who were detained in jail on a charge, be brought to trial on that charge within a six-month period. The time began to run either from the date the charge was filed or the date of the arrest, whichever was later. If, however, a delay was caused by the acts of the defendant, the six months began to run anew. Summerlin v. State (1971), Ind., 271 N.E.2d 411; State v. Grow (1970), 255 Ind. 183, 263 N.E.2d 277. In the case at bar, the appellants moved to continue the preliminary hearing to November 13, 1969. Hence, according to the construction given CR. 4(A) at that time, the six-month period began to run from the latter date. The critical period upon which we must focus our attention, therefore, is between November 13, 1969, and May 25, 1970, (the date of appellants' motion to discharge).

The period between November 13, 1969, and May 25, 1970, is clearly in excess of six months. During this period, the appellants were continuously detained in jail. Therefore, we hold that the appellants' motion for discharge, filed in Marion Criminal Court, Division Two, on May 25, 1970, should have been sustained and discharge ordered on the charge of robbery then pending.

This Court has held that a discharge is a bar to further prosecution on that charge. Small v. State (1972), Ind., 287 N.E.2d 334. The affidavit upon which the appellants were convicted in this case charges both robbery and inflicting injury in the commission of a robbery. Since the appellants' motion to discharge, filed on May 25, 1969, should have been sustained the pending charge of robbery should thereafter have been barred. But the ultimate issue presented to this Court is whether the charge of inflicting injury in the commission of a robbery is also thereafter barred. If such charge is barred, the judge of the Rush Circuit Court erred by overruling appellants' motion to discharge filed February 22, 1971. That is to say, appellants' motion to discharge should have been treated as a motion to dismiss and should have been granted. ¹

Inflicting injury in the commission of a robbery, by definition, presupposes the commission of a robbery or an attempted robbery. In fact, the charging affidavit (filed August 21, 1970), in both counts charges the appellants with the commission of robbery. That affidavit reads in pertinent part as follows.

'COUNT ONE

'(Defendants) did then and there unlawfully, feloniously, forcibly by violence and putting FREDA MALIN in fear, take from the person and possession of the said FREDA MALIN, money then and there of the value of ONE HUNDRED DOLLARS ($100.00) in lawful money, which property the said FREDA MALIN then and there lawfully held in her possession and was then and there the property of WILLIAM RUSSELL, doing business as THE GLASS FRONT TAVERN, 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.

'COUNT TWO

'The affiant aforesaid, upon his oath aforesaid, further says that FRANK L. FARLOW and LEON JOHNSON, on or about the 3rd day of OCTOBER, A.D., 1969, at and in the County of Marion and the State of Indiana, did then and there unlawfully, feloniously, forcibly by violence and putting FREDA MALIN in fear, take from the person and possession of the said FREDA MALIN, money, then and there of the value of ONE HUNDRED DOLLARS ($100.00), in lawful money, which money the said FREDA MALIN then and there lawfully held in her possession and was then and there the property of WILLIAM RUSSELL, doing business as THE GLASS FRONT TAVERN, and the said FRANK L. FARLOW and LEON JOHNSON, while engaged in committing the robbery aforesaid did then and there unlawfully and feloniously inflict a physical injury, to-wit: a wound in and upon the chest of Jems Fredericksen, with a pistol then and there held in the hands of the said LEON JOHNSON and FRANK L. FARLOW, then and there being . . ..' (Emphasis added.)

The State seizes upon the notion that a discharge only bars further prosecution for the same offense. The argument then proceeds to the illogical conclusion that the offense of inflicting injury in the commission of a robbery and the offense of robbery are separable for purposes of barring further prosecution. Such a premise is totally untenable.

Our reading of the robbery statute and the aforequoted affidavit inescapably leads us to the conclusion that the offense of robbery (or an attempted robbery) is an inextricable, indispensable element of the offense of inflicting injury in the commission of a robbery. In order to convict a defendant for inflicting injury, it is absolutely essential that the State establish either the commission of a robbery or an attempted robbery. In the case at bar, if the State is barred from any further prosecution on the robbery charge, how can it possibly prove its inflicting injury case? Therefore, in our judgment, the State was estopped to charge the appellants with inflicting injury in the commission of a robbery.

In this case the State sought to circumvent CR. 4(A) by charging the appellants, after the six-month period had run, with essentially the same offense disguised by the cloak of semantics. It is important to note that the State from the outset had all the pertinent information necessary to charge the appellants with the offense of inflicting injury in the commission of a robbery. The State had every opportunity to so charge the appellants, and, therefore, we should not penalize the appellants for the State's failure to exercise sound judgment.

We believe that a contrary holding would represent a serious threat to the continued vitality of the recently amended CR. 4(C). It opens the door to dilatory and unconscionable prosecutorial tactics and seriously undermines the rights of the accused. Playing cat and mouse games with criminal defendants by allowing them to dangle on the proverbial string will not be countenanced by this Court. For these reasons, we reluctantly apply former CR. 4(A) to the case at bar and order the appellants discharged. Such a result is necessary to give meaning and substance to that rule. Judgment is hereby reversed and appellants ordered discharged.

DeBRULER and PRENTICE, JJ., concur.

GIVAN, J., dissents with opinion in which ARTERBURN, C.J., joins.

GIVAN, Justice (dissenting).

I dissent from the majority opinion in this case.

The majority opinion takes the position that the appellants were held in jail under a charge of robbery from November 13, 1969, until May 25, 1970. However, the record does not support the majority opinion in this regard. The November 13 date used by the majority was the day ...