Kirk v. State, 770S151
| Decision Date | 01 June 1971 |
| Docket Number | No. 770S151,770S151 |
| Citation | 256 Ind. 480,269 N.E.2d 751 |
| Parties | William H. KIRK, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Anthony V. Luber, South Bend, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., for appellee.
The appellant was charged with second degree burglary. Later an additional count of automobile banditry was added to the charge. Trial was had by jury. Before submission to the jury, the court sustained appellant's motion for acquittal as to the charge of second degree burglary. The remaining charge of automobile banditry was submitted to the jury resulting in a verdict of guilty as charged. Following this verdict the appellant was sentenced to the Indiana State Reformatory for not less than one nor more than five years.
The record discloses the following facts:
The second degree burglary charge was filed against the appellant on February 14, 1968. On October 24, 1968, he filed a motion for dismissal under Rule 1--4D. On October 28, 1968, the court overruled appellant's motion to dismiss. On November 13, 1968, the State filed the additional charge of automobile banditry. As above set out, the appellant was subsequently acquitted of second degree burglary and found guilty of automobile banditry.
The facts upon which the appellant stands convicted of automobile banditry are as follows:
On February 11, 1968, at about 1:00 A.M., State's witness Victor Hammans saw an automobile parked between his home and the home of his father-in-law. He saw two men get out of the car, one of whom he identified as the appellant. He observed the two men go behind a truck stop. The witness stated that he went to the automobile, cleaned snow from the license plate observed it to be a Michigan plate with prefix letters ST. The witness then called the sheriff's department. Deputy Sheriff Patrick Kelley testified that he and his partner, Sergeant Singleton, received a radio dispatch that evening containing the information given to the department by the Witness Hammans. When the police officers arrived at the truck stop, Officer Kelley went to the back of the building where he heard noises, and upon turning on a light he saw the appellant and another man crouched down. He ordered them to stand up. When they did so a crowbar fell to the ground. Upon investigation the officer discovered that a window in the building had been opened about 14 to 18 inches. There were fresh pry marks along the base of the window which matched the end of the crowbar.
Appellant first contends the trial court erred in failing to discharge him pursuant to Rule 1--4D, claiming that he was held in jail over six months without delay on his part and, therefore, was entitled to relief under the rule. We need not go into his contentions in this regard for the reason that he was ordered acquitted by the trial judge on the charge of second degree burglary, which was the only charge to which Rule 1--4D could possibly have been applied. The charge of automobile banditry was not filed until after his motion for discharge as to the burglary charge had been overruled by the trial court. Rule 1--4D which was then in force reads in pertinent part as follows:
'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 (which ever is later); * * *.'
The appellant was first under arrest under the charge of second degree burglary and it was not until much later that the charge of automobile banditry was filed by the State. The six month period runs from the date of the arrest or the filing of the charge, which ever is later. State ex rel. Curry v. Davis (1968), 251 Ind. 504, 242 N.E.2d 512, 16 Ind.Dec. 267.
The appellant next contends the trial court erred in overruling his motion for acquittal on the charge of automobile banditry because the State in failing to prove the second degree burglary charge failed in proving an essential element in the automobile banditry charge. It is appellant's position that since the State saw fit to charge a completed second degree burglary as the crime involved in the automobile banditry that the failure to prove the completed burglary and the resting of the conviction of automobile banditry on an attempt to commit the second degree burglary was a fatal variance between the facts charged and the facts proved. With this we cannot agree. When the State charges the crime of automobile banditry, it may charge either a completed felony or an attempt to commit a felony, having on or near the premises an automobile which is intended to be used for escape. If the State, as it did in this case, charges a completed felony, it is nevertheless sufficient to sustain the charge of automobile banditry if the proof in fact establishes an attempt to commit the charged crime. Dooley v. State (1966), 247 Ind. 440, 217 N.E.2d 46, 8 Ind.Dec. 440.
The appellant claims that he was harmed by this alleged variance in that had he known the State would only be required to prove an attempted second degree burglary, he would have taken the witness stand to testify, but that he was misled in that because of the language of the charge he thought the State was going to be required to prove a completed burglary. The record does not support the appellant in this contention. During the presentation of appellant's defense and before appellant had rested, the trial court clearly explained to counsel for the appellant that it was the court's ruling that the proof by the State would be sufficient to go to the jury if the State proved an attempt to commit the second degree burglary. It was after this statement by the trial court to counsel for the appellant that the appellant rested. The trial court was correct in its statement of the law to appellant'...
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