Nelson v. State, 471S93
| Decision Date | 25 September 1972 |
| Docket Number | No. 471S93,471S93 |
| Citation | 259 Ind. 339,287 N.E.2d 336 |
| Parties | Curtis NELSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Frederick B. Robinson, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Michael Schaefer, Deputy Atty. Gen., for appellee.
Defendant (Appellant) was convicted of second degree murder under Acts 1905, ch. 169, § 350, Acts 1969, ch. 95, § 1, 1956 Repl. Burns Ind.Stat.Ann. § 10--3404, IC 1971, 35--1--54--1, and was sentenced to the Indiana State Prison for not less than fifteen (15) nor more than twenty-five (25) years and costs. Defendant presents three alleged errors which he submits require a reversal of his conviction:
(1) Denial of his motion for a change of venue,
(2) Denial of his motion for a directed verdict and at the close of the State's evidence, and
(3) Insufficiency of the evidence in that the defendant presented evidence of self defense which was unrebutted by the State.
(1) Defendant pleaded not guilty on July 1, 1970, and his motion for a change of venue was filed belatedly on December 14, 1970, the morning for which the case was set for trial. Criminal Rule 12 relating to change of venue in criminal cases reads in relevant part:
'* * * In any criminal action, no change of judge or change of venue from the county shall be granted except within the time herein provided.
'Provided, however, that if the applicant first obtains knowledge of the cause for change of venue from the judge or from the county after the time above limited, he may file the application, which shall be verified by the party himself specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence. * * *.'
In his verified application for change of venue, the defendant merely alleged that he could not receive a fair trial in Marion County. In support of his contention he testified that he had received threatening phone calls and that articles about him had appeared in a local newspaper. Defendant did not, however, include in his application any of the specific information required by the rule in instances of belated filing. In the case of Gibbs v. State (1971), Ind., 273 N.E.2d 280, this Court was confronted with a nearly identical situation. As in the case at bar, the appellant there failed to set out the information required in Trial Rule 77 which was then in effect for criminal cases and which is identical to Criminal Rule 12. In affirming the trial court's denial of a belated motion for a change of venue the Court said:
'The rules also state that if the cause for change of venue becomes known after the date for timely filing, the defendant may file a verified application specifically alleging: 1) when the cause was first discovered, 2) how it was discovered, 3) the facts showing the cause for a change, and 4) why such cause could not have been discovered before by the exercise of due diligence. The court's ruling on the verified application may only be reviewed for abuse of discretion. Brattain v. State (1945), 223 Ind. 489, 61 N.E.2d 462.
The appellant's written motion contains none of the above required allegations. The law in Indiana for determining whether the lower court abused its discretion in refusing the change of venue can be stated in the following manner. Whether the lower court abused its discretion in refusing the change of venue depends upon the allegations of bias and prejudice made and a consideration of the affidavits in support thereof and the counter-affidavits to the contrary. State ex rel. Allison v. Criminal Court of Marion County etc. et al. (1958). 238 Ind. 190, 149 N.E.2d 114.
In reviewing the contention made by appellant we are unable to find any merit. Neither the motion nor the evidence presented at the hearing on the motion contains any showing that the discretion of the trial court may have been abused. The trial court acted upon its own judgment of the evidence and without a clear showing of abuse; we will not disturb the lower court's ruling.' 273 N.E.2d at 281--282.
Defendant had an absolute right to a change from the county, inasmuch as he stood charged with first degree murder, but when he failed to file within the time prescribed, his right to the change was subject to the rules relative to belated filing. Not only did his motion fail...
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...it. Johnson v. State, supra. Sufficient rebuttal evidence may have been presented by the State in its case in chief. Nelson v. State (1972), Ind., 287 N.E.2d 336. Whether a plea of self-defense has validity is an ultimate question of fact for the jury. Clardy v. State (1973), Ind.App., 294 ......
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