Knight v. State, 1--373A48
| Decision Date | 13 June 1973 |
| Docket Number | No. 1--373A48,1--373A48 |
| Citation | 296 N.E.2d 892,156 Ind.App. 395 |
| Court | Indiana Appellate Court |
| Parties | Donald R. KNIGHT, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
James W. Pendland, Mitchell, for appellant.
Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., for appellee.
This is an appeal by Donald Knight, appellant (defendant below), from a conviction for aggravated assault and battery. On April 10, 1972, Knight was charged by affidavit with the offenses of carrying a pistol without a permit and aggravated assault and battery to both of which he pleaded not guilty. Thereafter, on May 5, 1972 Knight filed a motion for change of venue which was overruled that same date without a hearing on the motion. Subsequent to the sustained of a motion for separate trials and various other proceedings, including a trial and conviction on the charge of carrying a pistol without a permit, on July 24, 1972, trial on the aggravated assault and battery charge was set for October 3, 1972. Trial did not, however, take place on October 3, 1972, but instead a civil cause was heard on that date. On October 6, 1972, Knight filed a motion for dismissal alleging that the cause should be dismissed because '. . . Defendant, being in jail, was not brought to trial within fifty (50) judicial days as required by CR4.' The motion was overruled and trial was set for November 9, 1972, at which time Knight was tried by a jury and found guilty of aggravated assault and battery.
Subsequent to the jury's verdict, Knight filed a motion to correct errors in which the following errors were alleged: (1) the court erred in overruling defendant's motion for change of venue without a hearing on said motion; (2) the court erred in overruling defendant's motion for dismissal; and (3) the State failed to prove beyond a reasonable doubt that defendant had the requisite intent to commit the offense with which he was charged. Knight's motion to correct errors was overruled and the aforementioned allegations of error are now raised in this appeal.
The substance of Knight's argument relating to the overruling of his motion for change of venue is that while it was within the judicial discretion of the trial court to grant or deny a change of venue from the county, it was reversible error to deny the motion without a hearing thereon. This very same issue was recently raised in Knight v. State (1973), Ind.App., 294 N.E.2d 158, which was an appeal by defendant herein, Knight, from his conviction for carrying a pistol without a permit. In that case, we found it necessary, as we likewise do here, to reverse Knight's conviction on the basis of Hanrahan v. State (1968), 251 Ind. 325, 241 N.E.2d 143, in which the Indiana Supreme Court, in construing Supreme Court Rule 1--12c, now CR.12, held:
'. . . that to deny an uncontroverted, verified application for change of venue without affording petitioner some opportunity to present additional evidence in support of said application is an abuse of discretion by the trial court, and that such a denial in this case constitutes reversible error . . .' See also: Brown v. State (1969), 252 Ind. 161, 247 N.E.2d 76; Cooper v. State (1972), Ind., 284 N.E.2d 799. We are thus compelled to reverse this action and remand the same for further proceedings not inconsistent with this opinion.
While the foregoing renders unnecessary a determination as to the sufficiency of the evidence relating to the element of...
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Bradberry v. State
...as the court might require to support defendant-appellant's motion for change of venue from the county.' See, also, Knight v. State (1973), Ind.App., 296 N.E.2d 892. The basis for our decision in Knight, supra, was that no hearing was held prior to a ruling on the verified motion for a chan......
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Utterback v. State, 2--173A5
...is not self-executing and its application depends upon the filing by defendant of a proper Motion for Speedy Trial. Knight v. State (1973 Ind.Ct.App.) 296 N.E.2d 892; Gross v. State (1972) Ind., 278 N.E.2d 583. Such Motion was filed by appellant-defendant on May 18, 1972. The Motion was gra......