Martin v. State, 30180

• Decision Date: 17 December 1963
• Docket Number: No. 30180,30180
• Citation: 194 N.E.2d 721,245 Ind. 224
• Parties: Jack William MARTIN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 721

194 N.E.2d 721

245 Ind. 224

Jack William MARTIN, Appellant, v. STATE of Indiana, Appellee.

No. 30180.

Supreme Court of Indiana.

Dec. 17, 1963.

Ralph E. Brill and N. George Nasser, Terre Haute, for appellant.

Edwin K. Steers, Atty. Gen., William D. Ruckelshaus, Asst. Atty. Gen., Indianapolis, for appellee.

ACHOR, Judge.

Appellant was charged, in two counts, with assault and battery with intent to gratify his sexual desires, under the alternative provisions of Acts 1951, ch. 277, § 1, p. 825, being § 10-403, Burns' 1956 Repl. He was found guilty of assault and battery as an included offense within the first count, and was sentenced accordingly.

Appellant asserts three basic grounds for reversal:

1. That the court erred in overruling appellant's motion to dismiss and discharge the appellant, because of the failure of the state to prosecute the action within the provisions of the three-term statutes Acts 1905, ch. 169, § 220, p. 584, being § 9-1403, Burns' 1956 Repl.

2. That the sustaining of a motion to quash the original affidavit was a final judgment, since the motion was sustained on the ground that § 10-403, supra, upon which the cause was based, was unconstitutional. Hence, that the quashing of the affidavit finally disposed of the subjectmatter of the litigation and put an end to the particular case, insofar as the court had power to dispose of it.

Based upon the above contention, appellant asserts that it became the duty of the state to appeal from that judgment within 90 days, and, not having done so, it is estopped from further proceeding in the case and of prosecuting this appeal.

3. Appellant asserts that the court committed error in overruling the motion to quash each count of the second amended affidavit, on the ground that it was subject to the same deficiencies for which the original affidavit and the first amended affidavit were quashed, to-wit:

'(a) The allegations stated in * * * the affidavit do not constitute a public offense.

'(b) That * * * said affidavit does not state the offense with sufficient certainty.

'(c) * * * [S]aid affidavit contains matter which is a legal bar to the prosecution.'

We will consider appellant's contentions in the order above enumerated.

First, appellant argues that the court below erred in not sustaining his motion to dismiss, as more than three terms of court had elapsed without trial, and without fault of appellant. ¹

This case has been before this court on two prior occasions. In the first instance, this court reversed the judgment, on the ground that the decree was not compatible with the verdict of the jury. Martin v. State (1959), 239 Ind. 174, 154 N.E.2d 714.

Later, while the case was again in the trial court, the state filed a motion for change of judge, which motion was denied by the special judge, although the state was entitled to such relief. Thereupon the state filed a proceeding in mandamus, pursuant to which this court issued a writ, and, thereafter, denied a petition for rehearing. Application for these proceedings was filed on April 6, 1960, and the petition for rehearing was denied on February 14, 1961, during all of which time the matter was pending before this court. State ex rel. Berry, etc. v. Beecher (1961), 241 Ind. 353, 170 N.E.2d 425.

During the course of the above proceedings, the May, September, and November terms were permitted to elapse without any proceedings being had in said trial court. Basically, appellant rests his cause for discharge upon this lapse of time which, he asserts, could not be attributed to him.

We do not concur in appellant's contention. Although in the proceedings for a writ of mandamus, the trial judge, and not the appellant here, was named as respondent, we judicially know that ordinarily the adverse parties in the action before the court are the real parties in interest in resisting the action which the petitioner would require of the trial court. In this particular case, this court not only had judicial knowledge of the normal interest of the appellant in the proceedings; here the attorneys for appellant, as shown by the record, actually represented the respondent judge in opposing the remedial action to which the relator was entitled. Under these circumstances, the appellant cannot, with propriety, deny that the delay occasioned by these proceedings was chargeable to him.

Furthermore, notwithstanding the general language which appears in the cases cited by appellants, ² we note that none of the cases have considered that § 9-1403, supra, applied under circumstances where the delay was caused by proceedings in this court. In fact, an implication to the contrary appears in the case of Zehrlaut v. State (1951), 230 Ind. 175, 183-184, 102 N.E.2d 203, 207 relied on by appellant. In that case this court stated:

'The statute, * * * [b]eing a practical implementation of art. 1, § 12 of the Indiana Constitution, it casts no burden upon the defendant, but does cast an imperative duty upon the state and its officers, the trial courts and prosecuting attorneys, to see that a defendant held on recognizance is brought to trial agreeable with this section of the constitution and its implementing statute. * * *' [Our emphasis.]

This construction of the statute § 9-1403, supra, is supported by the clear language of the statute, since the terms of court involved are those of the trial court, and the responsibility for bringing the action to trial is thrust upon the prosecuting attorney and the trial judge, neither of whom could exercise any control over the judicial process in this court.

To hold that any proceedings filed by the state in this court must count as termtime, within the contemplation of the statute, would amount to applying the statutory proscription in many, if not a majority, of the cases brought before this court, since the procedural process in bringing an action to this court, and the deliberative period required for an adjudication of the issues presented, would normally exceed the period of two or three terms of the trial court, as specified in the statute. It is inconceivable that such was the intention of the legislature which enacted the law.

This court has held that where the appellant sets in motion the chain of events that causes the delay, he is not entitled to discharge under § 9-1403, supra. Wedmore v. State (1957), 237 Ind. 212, 143 N.E.2d 649.

Next we consider appellant's second contention, as heretofore stated. It is appellant's contention that the court's decision in quashing the first affidavit was a final judgment, since his decision was based upon a determination that § 10-403, supra, was unconstitutional, and, therefore, under Acts 1905, ch. 169 § 195, p. 584, being § 9-1130, Burns' 1956 Repl., no new affidavit could be filed. Appellant has cited no authority for this contention other than the above cited statute [§ 9-1130], which reads as follows:

'If the motion to quash be sustained the defendant shall not be discharged, unless the court should be of opinion that the objection can not be avoided by a new indictment, or affidavit. And in case an indictment or affidavit is quashed, the court shall direct the case to be resubmitted to the grand jury which found the indictment, or to another grand jury, or the prosecuting attorney may file a proper affidavit against the defendant, charging him with the offense. And the court must detain the defendant in custody, or recognize him with sufficient surety, if the offense be bailable, to answer to the offense, and if necessary recognize the witnesses to appear and testify.'

Obviously § 9-1130, supra, provides for the discharge of a defendant if the court is of the opinion that the error cannot be avoided by a new affidavit. However, we are here confronted with the fact that the court made no finding to this effect, entered no judgment, and did not order the appellant discharged. Neither does the record indicate that the appellant requested such action, nor that the parties acted upon the assumption that this action of the court constituted final judgment. The appellant cannot here, for the first time, assert a theory, with regard to the disposition of his case, which was not asserted in the trial court.

In support of his third major contention, as previously stated, appellant contends that the allegations in the affidavit do not constitute a public offense, for the reason that § 10-403, supra, upon which the affidavit is grounded, is unconstitutional. Specifically, appellant argues that § 10-403 is unconstitutional in that it violates Art. 4 § 20 of the Indiana Constitution. which reads as follows:

'Every act and joint resolution shall be plainly worded, avoiding, as far as practicable, the use of technical terms.'

It is appellant's contention that § 10-403, supra, is not so worded. It reads as follows:

'Whoever in a rude, insolent or angry manner, unlawfully touches another, is guilty of an assault and battery, and on conviction, shall be fined not more than one thousand dollars [$1,000], to which may be added imprisonment in the county jail not exceeding six months: Provided, That whenever in the commission of the offense any person removes, tears, unbuttons, unfastens, or attempts to remove, tear, unbutton or unfasten any clothing of any child who has attained his or her twelfth...