Knight v. State
| Decision Date | 05 April 1973 |
| Docket Number | No. 1--173A20,1--173A20 |
| Parties | Donald R. KNIGHT, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
James W. Pendland, Mitchell, for defendant-appellant.
Theo. L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., for plaintiff-appellee.
Defendant-appellant was charged on April 10, 1972, with the crime of carrying a pistol without a permit. On May 5, 1972, a pistol without a permit. On May 5, 1972, defendant-appellant timely filed a verified motion for change of venue from the county, for the reason he could not receive a fair trial of said cause in Lawrence County, '. . . owing to the excitement and prejudice against the Defendant in said County and in the part of said County where said cause is to be tried.' The same was overruled by the court on the date it was filed without any hearing to determine if there was excitement and prejudice, as alleged.
The one issue necessary for review by this court is whether the trial court erred in overruling defendant's affidavit for change of venue from the county, thus denying him a fair trial by an impartial jury.
The causes for change of venue from the county are still governed by Ind.Stat.Ann. § 9--1301 (Burns 1956 Repl.), the same being IC 35--1--25--1.
Said statute provides, in part, as follows:
'The defendant may show to the court, by affidavit, that he believes he can not receive a fair trial, . . . or the excitement or prejudice against the defendant in the county or in some part thereof . . .'
In the case of Hanrahan v. State (1968), 251 Ind. 325, 241 N.E.2d 143, Justice Hunter of our Supreme Court passed on the same question that has been presented to us in this action. He referred to Supreme Court Rule 1--12C, which is presently Criminal Rule 12, which provides, in part:
'Upon the filing of a properly verified application, a change of venue from the county shall be granted in all cases punishable by death and may be granted in all other cases when in the court's discretion cause for such change is shown to exist after such hearing or upon such other proof as the court may require.'
In Hanrahan the court said there was nothing in the record to indicate that appellant was afforded a hearing or an opportunity to present evidence before the trial court overruled the motion, and apparently the prosecution did not present any answer or evidence to rebut appellant's application.
Justice Hunter 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...
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Wilson v. State
...160 Ind.App. 202, 311 N.E.2d 437 (judge); Millican v. State (1973), 157 Ind.App. 363, 300 N.E.2d 359 (judge); Knight v. State (1973), 155 Ind.App. 680, 294 N.E.2d 158 (county); Thus, it would appear from these cases that some procedure other than a hearing will fulfill the mandate of C.R. 1......
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Millican v. State, 1--1272A110
...See, also, Brown v. State (1969), 252 Ind. 161, 173, 247 N.E.2d 76; Cooper v. State (1972), Ind., 284 N.E.2d 799; Knight v. State (1973), Ind.App., 294 N.E.2d 158. On the basis of Hanrahan, supra, Millican should have, at the very least, been afforded a hearing or an opportunity to present ......
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Knight v. State, 1--373A48
...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 f......
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Bradberry v. State
...on the motion. See, also, Dickens v. State (1973), Ind., 295 N.E.2d 613. This court has recently held, in the case of Knight v. State (1973), Ind.App., 294 N.E.2d 158, that a proper motion for a change of venue should not be ruled upon until a hearing has been had thereon. This court held a......