Majors v. State

• Decision Date: 22 October 1969
• Docket Number: No. 1268S207,1268S207
• Citation: 252 Ind. 672,251 N.E.2d 571
• Parties: Richard MAJORS, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 571

251 N.E.2d 571

252 Ind. 672

Richard MAJORS, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 1268S207.

Supreme Court of Indiana.

Oct. 22, 1969.

Frederick J. Graf, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Murray West, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

Appellant was charged by indictment on two counts, first degree burglary and first degree arson. Trial was had before the court and the judge made a direct finding of not guilty upon defendant's motion at the conclusion of the state's case on count one, the first degree burglary charge. Appellant was found guilty on the second count of first degree arson and was sentenced to the Indiana Reformatory for not less than two (2) nor more than fourteen (14) years and costs. This appeal followed.

The evidence most favorable to the state discloses the following: A house owned by one Fred Baumiester, located at 1608 South Harlan Street in Indianapolis, Indiana burned on July 30, 1967. The tenants occupying the house were absent at the time of the fire, having left town for the weekend the Friday before. Appellant and his family lived across the street.

On the evening of the fire, a neighbor observed appellant, his brother and one other person walking toward the house which burned, approximately one-half to three-quarters of an hour before the fire was discovered. This same witness testified that shortly after the fire she indicated to some neighbors who had gathered to watch that she suspected foul play and wanted to call either the police or fire department. Appellant was apparently standing nearby and threatened to burn her house next 'if she wasn't careful.' Further, appellant admitted to police officer Stark, in a conversation a couple days after the fire, that he was in the house just prior to the fire and that a fellow named 'Jack' started the fire in his presence. Also appellant had a radio in his possession, which according to its owner was inside the house before the fire. Finally, there was expert testimony to the effect that the fire was an arson or 'set' fire.

The issues as framed by appellant's motion for new trial and brief submitted to this court raise three questions with which we must concern ourselves: (1) denial of the right to a speedy trial; (2) double jeopardy; and (3) sufficiency of the evidence and the related issue of variance in the proof.

We turn first to appellant's contention that he was denied the right to a speedy trial as guaranteed by our Constitution Art. 1 § 12. On August 1, 1967 appellant was arrested and allegedly charged in the Municipal Court of Marion County with first degree burglary and first degree arson (cause #4--8433). On September 4, 1967 that court found appellant not guilty of first degree burglary but he was bound over by the Marion County Criminal Court and on October 17, 1967 an indictment was returned with the charges of first degree burglary and first degree arson (cause #CR--67--1212). On the date set for trial, December 26, 1967, the state filed a Motion to Dismiss on both counts for lack of evidence and the court sustained the motion. Appellant had been incarcerated from August 1 to December 26, 1967, but apparently was dismissed on December 26. On March 29, 1968, appellant was reindicted on the identical charges as above set out and a conviction on that indictment as to the first degree arson charge is the basis for this appeal.

Appellant contends that the time from his arrest in August until April 17, 1968, at which time he requested his first continuance was a period of time in excess of eight months and therefore violated his right to speedy trial under Supreme Court Rule 1--4D, which he contends requires that the defendant be tried before the lapse of six months.

We cannot agree. The first paragraph of the rule requires that the defendant be

'detained in jail * * * 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.)' (our emphasis)

Here appellant was incarcerated from August 1, 1967 to December 26, 1967 or a period of approximately five months. He was then released. Later on March 29, 1968, he was re-arrested on the second indictment. It is not evident from the record how long appellant was in jail, if indeed at all, on the second arrest and appellant fails to allege that in fact he was again incarcerated. We are not inclined to here hold that appellant must be held for a continuous period of six months to satisfy the requirements for a discharge under the first paragraph of Rule 1--4D, supra. To do so would enable the state to hold a prisoner just short of six months, release him and then on re-arresting the same man on the identical charge hold him for another period of time just short of the six months. In resolving the speedy trial issue it would appear that any time spent in prison under a prior arrest for the same charge would be counted in computing the six months incarceration required for discharge under the first paragraph of Rule 1--4D, supra. The similar result has been reached by this court when computing the time a defendant may be held on recognizance before a discharge is proper where the defendant had been previously indicted on the same charge. Johnson v. State (1969), Ind., 246 N.E.2d 181. State ex rel. Hasch v. Johnson, Cir.Ct. (1955), 234 Ind. 429, 127 N.E.2d 600. Here however with no showing of an incarceration exceeding six months and no allegation that any other paragraph of Rule 1--4D, supra, has been violated, there is no basis to the contention that appellant's right to a speedy trial has been violated.

Appellant next argues that he has been placed in double jeopardy. In his brief he mentions both the proceedings in the Municipal Court and the proceedings in the Criminal Court on the first indictment and alleges that jeopardy attached, thereby rendering a trial on the second indictment a violation of his...