Martin v. State, No. 30773

Docket NºNo. 30773
Citation247 Ind. 592, 219 N.E.2d 902
Case DateSeptember 30, 1966
CourtSupreme Court of Indiana

Page 902

219 N.E.2d 902
247 Ind. 592
Dean MARTIN, Everett Axsom, Appellants,
v.
STATE of Indiana, Appellee.
No. 30773.
Supreme Court of Indiana.
Sept. 30, 1966.

[247 IND 592]

Page 903

Ferdinand Samper, Indianapolis, C. Kent Carter, Bloomington, for appellants.

John J. Dillon, Atty. Gen., David S. Wedding, Deputy Atty. Gen., Indianapolis, for appellee.

ORIGINAL ACTION

ARTERBURN, Judge.

Appellants and one Chester Hillenburg were tried and convicted of rape in the Monroe Circuit Court, and on March 10, 1961, were sentenced to the Indiana Reformatory for a term of two to twenty-one years.

Appellants thereafter, pursuant to Rules 2--40 and 2--40A, filed a petition for leave to file a belated motion for a new trial, which petition was denied on April 19, 1965. This ruling is before us on a petition for a writ of certiorari from the judgment denying said petition.

Appellants allege that their self-employed counsel who represented the appellants in the trial of said cause were derelict in their preparation of the case by reason of the fact that such counsel failed to determine that the offense for which appellants were charged, tried and convicted actually occurred in Jackson County, although the charge was prosecuted in Monroe County, and under the evidence (which was in conflict) it was determined at the trial that the offense occurred in Monroe County.

A question could be raised as to whether, under the conflict of evidence, a reversible error was properly presented as a matter of law. However, the issue has not been presented to this Court.

The right to be tried in the county where the offense was committed is both a constitutional 1 and a statutory 2 right here in Indiana. However, it has been decided by this Court and the courts of many other jurisdictions that the provision may be waived by a defendant, for example, in asking for a change of venue.

The principles which are controlling of this case were extensively considered in the case of Brown v. State (1941), 219 Ind. 251, 264, 37 N.E.2d 73, 78, 79, 137 A.L.R. 679. In that case the [247 IND 594] defendant was also charged and convicted of the crime of rape. The offense was consummated in Union County and the charge was filed in that county. However, as a result of a change of venue which was not properly authorized, the cause was tried in Wayne County. In that case this Court stated:

'The Wayne Circuit Court had general jurisdiction of the subject-matter, the jurisdiction to try...

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4 practice notes
  • Wilson v. State, No. 4-784A201
    • United States
    • Indiana Court of Appeals of Indiana
    • December 26, 1984
    ...be confused with the waivable venue right to be tried in the county where the offense was committed. See, e.g., Martin v. State (1966), 247 Ind. 592, 219 N.E.2d 2 There may be some problem with specificity in Wilson's second motion if we interpret literally C.R. 12 that it must allege "why ......
  • Butler v. State, No. 2-577-A-155
    • United States
    • Indiana Court of Appeals of Indiana
    • October 2, 1978
    ...This right can be waived by the failure of the accused to make an appropriate objection in the trial court. Martin v. State (1966), 247 Ind. 592, 219 N.E.2d 902. In Quassy v. State (1975), Ind.App., 338 N.E.2d 283 the Court of Appeals of Indiana, Second District held Venue is an essential e......
  • Floyd v. State, No. 684S248
    • United States
    • Indiana Supreme Court of Indiana
    • January 28, 1987
    ...waives error relating to venue when he fails to make an objection at the appropriate time in the trial court. Martin v. State (1966), 247 Ind. 592, 219 N.E.2d 902; Brown v. State (1941), 219 Ind. 251, 37 N.E.2d 73. There was no error in trying appellant in Lawrence Appellant claims the tria......
  • Reynolds v. State, No. 1069S226
    • United States
    • Indiana Supreme Court of Indiana
    • July 31, 1970
    ...73; Rogers v. State (1949), 227 Ind. 709, 88 N.E.2d 755; Green v. State (1952), 230 Ind. 400, 103 N.E.2d 429; Martin v. State (1966), 247 Ind. 592, 219 N.E.2d 902. In this case appellant objected to the venue of the Lawrence Circuit Court for the first time in her motion for new [254 Ind. 4......
4 cases
  • Wilson v. State, No. 4-784A201
    • United States
    • Indiana Court of Appeals of Indiana
    • December 26, 1984
    ...be confused with the waivable venue right to be tried in the county where the offense was committed. See, e.g., Martin v. State (1966), 247 Ind. 592, 219 N.E.2d 2 There may be some problem with specificity in Wilson's second motion if we interpret literally C.R. 12 that it must allege "why ......
  • Butler v. State, No. 2-577-A-155
    • United States
    • Indiana Court of Appeals of Indiana
    • October 2, 1978
    ...This right can be waived by the failure of the accused to make an appropriate objection in the trial court. Martin v. State (1966), 247 Ind. 592, 219 N.E.2d 902. In Quassy v. State (1975), Ind.App., 338 N.E.2d 283 the Court of Appeals of Indiana, Second District held Venue is an essential e......
  • Floyd v. State, No. 684S248
    • United States
    • Indiana Supreme Court of Indiana
    • January 28, 1987
    ...waives error relating to venue when he fails to make an objection at the appropriate time in the trial court. Martin v. State (1966), 247 Ind. 592, 219 N.E.2d 902; Brown v. State (1941), 219 Ind. 251, 37 N.E.2d 73. There was no error in trying appellant in Lawrence Appellant claims the tria......
  • Reynolds v. State, No. 1069S226
    • United States
    • Indiana Supreme Court of Indiana
    • July 31, 1970
    ...73; Rogers v. State (1949), 227 Ind. 709, 88 N.E.2d 755; Green v. State (1952), 230 Ind. 400, 103 N.E.2d 429; Martin v. State (1966), 247 Ind. 592, 219 N.E.2d 902. In this case appellant objected to the venue of the Lawrence Circuit Court for the first time in her motion for new [254 Ind. 4......

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