Liese v. State

Decision Date13 April 1954
Docket NumberNo. 29100,29100
Citation118 N.E.2d 731,233 Ind. 250
PartiesLIESE v. STATE.
CourtIndiana Supreme Court

Sam Blum, Albert W. Ewbank, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Robert L. Sheaffer, Deputy Atty. Gen., for appellee.

DRAPER, Chief Justice.

The appellant was charged by affidavit in two counts with second-degree burglary and grand larceny. He was tried by jury and found guilty of grand larceny. His motion for new trial was overruled and he appeals.

The evidence most favorable to the state discloses, among other things, that on October 10, 1951, the appellant, an Indianapolis policeman, was assigned with another officer to patrol duty in a squad car. About 1:40 on the morning of that day the appellant stopped the squad car in front of a merchandising store. He proceeding to the rear of the store, and after five or ten minutes, returned and told the other officer that the store had been broken into, and the store had in fact been broken into by someone. Both officers then entered the store and checked the premises. While there the appellant, over the protests of his fellow officer, rifled the cash register and removed a packaged garbage disposal unit from the store. This he placed in the squad car and later concealed it in some bushes some distance away, later taking it to his home. Several months later the appellant's home was searched and the disposal unit was found in his basement.

The evidence was clearly sufficient to establish each element of the crime of grand larceny and the fact that the appellant committed it, unless, as appellant insists, the offense committed could in no view of the evidence constitute larceny, but only embezzlement. We shall discuss that aspect of the case later.

The trial court overruled appellant's application for change of venue from the county. The granting of such a change in a case not punishable by death lies within the discretion of the trial court, and the ruling thereon is reversible only for an abuse of that discretion, Rogers v. State, 1948, 226 Ind. 539, 82 N.E.2d Butler v. State, 1951, 229 Ind. 241, 97 N.E.2d 492. The record before us discloses no abuse of discretion in that regard.

The court denied appellant's motion for a continuance which was filed on May 7, 1953, the day the trial began. The affidavit for continuance asserts that a certain daily newspaper published in the city of Indianapolis had persisted in publishing stories on the eve of the day said cause had been set for trial, and that said stories were worded in such a manner as to be very prejudicial to the defendant; that an earlier continuance had been granted because of a previous story in the same newspaper; that said newspaper has a large circulation and is widely read in Marion County, Indiana. A story published in the newspaper's issue of May 6, 1953, is attached to the affidavit as an exhibit. It appears under bold headlines. It states that Liese was on that day (May 6, 1953) 'fired' by the Indianapolis Board of Safety, 482 days after he was accused of looting stores he was sworn to protect, and that Liese would go on trial in the Criminal Court the following day on charges of burglary and grand larceny, which same accusations were the foundation of the Safety Board's trial of Liese on a charge of conduct unbecoming an officer. The article further indicates that the matter of the proceeding before the Board had become a political football--a political hot potato, but it does not suggest that Liese was responsible for that situation.

Here again the matter presented was one within the sound discretion of the trial court, whose ruling may not be disturbed in the absence of an abuse of that discretion. Souerdike v. State, 1951, 230 Ind. 192, 102 N.E.2d 367; Rose v. State, 1941, 219 Ind. 44, 36 N.E.2d 767. The trial court is in a much better position to determine the propriety of a continuance on this ground than is this court. There is no showing that the article actually did prejudice the appellant in any way, nor does it appear that any juror or prospective juror ever read or heard of it, or of any other article published by the newspaper which concerned Liese. The story is factual. It is neither inflammatory, accusatory nor condemnatory. It does not suggest appellant's guilt or express any doubt of his innocence. When an application such as this is made, a continuance should be granted if it appears reasonably probable that the accused may be prejudiced by the denial thereof....

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7 cases
  • Randolph v. State, 28987
    • United States
    • Indiana Supreme Court
    • 7 Diciembre 1954
    ...that justice be administered 'speedily and without delay'. State v. Kuhn, 1900, 154 Ind. 450, 453, 57 N.E. 106, 107; Liese v. State, Ind.Sup.1954, 118 N.E.2d 731. The primary and specific purpose of the statute is to provde a speedy trial on a criminal charge. Can a defendant, after he has ......
  • Hashfield v. State
    • United States
    • Indiana Supreme Court
    • 6 Octubre 1965
    ...Admittedly the granting or denial of a continuance is a discretionary matter to be exercised by the trial court. Liese v. State (1954), 233 Ind. 250, 118 N.E.2d 731. Counsel in oral argument presented a strong and impassioned argument in support of their contention that under the facts of t......
  • Irvin v. Dowd
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 12 Noviembre 1959 the absence of an abuse thereof. This is recognized by the case which is relied upon by defendant in his brief, Liese v. State, 233 Ind. 250, 254, 118 N.E.2d 731. There was no abuse of discretion by the trial judge in this 3. A change of venue was granted to defendant from Vanderburgh co......
  • Peak v. State
    • United States
    • Indiana Supreme Court
    • 11 Enero 1960
    ...616, 94 N.E.2d 453; Rose v. State, 1941, 219 Ind. 44, 36 N.E.2d 767; Krupa v. State, 1927, 198 Ind. 695, 154 N.E. 666; Liese v. State, 1954, 233 Ind. 250, 118 N.E.2d 731. Error is also claimed in the refusal to give Instruction 1 tendered by the This was a peremptory instruction in the foll......
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