Norris v. State

• Decision Date: 16 September 1968
• Docket Number: No. 1267S147,1267S147
• Citation: 251 Ind. 155,240 N.E.2d 45
• Parties: Ronald Paul NORRIS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 45

240 N.E.2d 45

251 Ind. 155

Ronald Paul NORRIS, Appellant, v. STATE of Indiana, Appellee.

No. 1267S147.

Supreme Court of Indiana.

Sept. 16, 1968.

Dean E. Richards, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Michael V. Gooch, Deputy Atty. Gen., for appellee.

LEWIS, Chief Justice.

This is an appeal from a conviction of the appellant for the crime of Aggravated Assault. The appellant was tried jointly with an accomplice by a jury on Count Two of the Affidavit charging him with Aggravated Assault and Battery.

The evidence elicited at the trial reveals the following. On August 6, 1965, the prosecuting witness was riding in an automobile with four (4) other individuals. The driver of the car pulled into a tavern in Terre Haute, Indiana, ostensibly to purchase more beer. After stopping the car, the driver got out and went for the beverage. At this moment the appellant appeared and the prosecuting witness got out of the car. The two (2) men proceeded to argue over the prosecuting witness' treatment of the appellant's sister, whereupon the appellant struck the victim, knocking him to the ground and breaking his jaw. The three (3) remaining parties in the car witnessed the ensuing fight. Their stories are conflicting as to exactly what happened after the first blow, but taking the evidence most favorable to the State: the appellant hit the victim in the head with a beer bottle and struck him several times more. The victim was impaired by a broken arm which he had previously suffered.

The evidence is also conflicting as to the degree, if any, that the appellant's joint defendant the driver of the car, aided in the fight. However, the jury chose to believe that the alleged joint defendant had gone for some beer, heard the noise accompanying the incident, and returned; but, that he did not aid the appellant. He was acquitted.

A physician testified that upon the victim's arrival at Union Hospital in Terre Haute, that he was suffering from multiple fractures of the jaw, and other injuries not within the doctor's specialty. He stated that in his opinion the victim had received more than one (1) blow, based upon his examination of the configuration of the fractures.

On appeal, the appellant raises essentially two (2) alleged errors:

1. That the evidence is insufficient to support the verdict of the jury.

2. That the Trial Court erred in overruling appellant's motion for discharge for the reason that the appellant was held for more than one (1) year on recognizance before trial, contrary to Supreme Court Rule 1--4D--3.

The appellant's first alleged error is subdivided into two (2) areas. The first may be stated as, 'There must be testimony or other evidence linking the accused with the matters being attested to.' The witnesses all testified substantially that the victim got out of the car, a fight ensued, and the victim was immediately knocked to the ground.

Secondly, appellant states that, 'There must be a showing that the person in the courtroom is one and the same as the person designated in the indictment.' While it is true that the record does not reveal any of the witnesses expressly pointing out the appellant in the courtroom as 'the man', they did testify that they knew the appellant Ronald Norris, and that he was the man they saw fighting with the victim.

In his attack on the sufficiency of the evidence, the appellant is challenging his identification as the victim's assailant.

'* * * The question of identity is one of fact and not of law. Therefore all evidence bearing upon the question must be submitted to the jury, and it is for the jury to determine whether it is satisfactory and trustworthy. Craig v. State, 1908, 171 Ind. 317, 323, 86 N.E. 397; Hendricks v. State, 1866, 26 Ind. 493, 494, 495; Harbor v. Morgan, 1853, 4 Ind. 158, 159; 9 Am.jur., Burglary, § 70, p. 274. The evidence was pertinent to the issue of identification and was properly admitted. Its weight was for the jury to determine.' Medsker v. State (1946), 224 Ind. 587, 70 N.E.2d 182.

On appeal from a criminal conviction where the sufficiency of the evidence is challenged, the Supreme Court cannot weigh the evidence, but will consider only the evidence most favorable to the State, and the reasonable inferences that may be drawn therefrom to determine whether the jury was warranted in returning a verdict of guilty. Gilmore v. State (1951),229 Ind. 359, 98 N.E.2d 677, Flowers v. State (1956), 236 Ind. 151, 139 N.E.2d 185.

Upon reviewing the testimony elicited at the trial, we hold that it was sufficient to establish that the appellant was the victim's assailant.

The second alleged error is based upon Supreme Court Rule 1--4D, (1967), the pertinent parts of which read as follows:

'3. Defendant on Recognizance.--No person shall be held by recognizance to answer on indictment or affidavit, without trial, for a period of embracing more than one (1) year continuously from the date on which a recognizance was first taken therein; but he shall be discharged except as provided by paragraph one (1) of this rule.'

'* * * except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last mentioned circumstances, the prosecuting attorney shall make such statement in a motion for continuance not later than ten (10) days prior to the date set for trial, or if such motion is filed less than ten (10) days prior to trial, the prosecuting attorney shall show additionally that the delay in filing the motion was not the fault of the prosecutor.'

The affidavit was filed with the Clerk of Vigo Circuit Court on August 26, 1965. The trial was held on July 10, 1967. On the surface it would appear that the appellant was, indeed, held on recognizance for more than the statutory period of one (1) year.

However, under Rule 1--4D, supra, there is the exception that where the delay is caused by the defendant, discharge is not available. Wedmore v. State (1957), 237 Ind. 212, 143 N.E.2d 649. Without listing all the proceedings in the record, the following are the key events:

August 26, 1965 Affidavit filed with the Clerk of Vigo County

September 21, 1965 Defendant's motion granted for continuance of arraignment to September 8, 1965.

February 28, 1966 Defendant's motion for continuance of trial until May 16, 1966

May 23, 1966 Defendant Norris failed to appear without reason and cause continued until June 1, 1966

May 27, 1966 Defendants filed an amended motion for change of venue

June 29, 1966 Venue perfected to Sullivan County and records received

November 21, 1966 State of Indiana informed Trial Court that Gerry Quinn, the prosecuting witness, was unavailable, having left his home and taken his clothing. Information was given that he had left in a state of fear. State requested a continuance.

November 21, 1966 Defendants object to the continuance and move the Court to dismiss, based on the State's failure to prosecute.

November 29, 1966 Motion to dismiss for reason appellant not tried within one (1) year overruled and State given a continuance.

March 27, 1967 Cause set for trial on April 6, 1967

April 6, 1967 No indication in transcript as to what transpired this date.

June 14, 1967 Cause set for trial July 10, 1967.

July 7, 1967 Appellant filed motion for discharge because he had not been granted a speedy trial.

July 10, 1967 Motion overruled and trial started.

Appellant's first motion to dismiss was filed on November 21, 1966. This motion came only about five (5) months after the change of venue which was requested by the appellants had been perfected. The appellants had inaugurated the proceedings voluntarily and of their own free will. They may not now be heard to say that this delay would necessitate their dismissal. Indeed, before this change of venue, the defendants had petitioned for and had been granted continuances and also had delayed the proceedings in other ways. Therefore, we hold that the first motion to dismiss was properly overruled.

Appellant's second motion to dismiss was filed on July 7, 1967. This motion was filed more than twelve (12) months after the change of venue was perfected to Sullivan County. However, there is some question about what transpired on April 6, 1967. Trial was set for this date and then re-set for July 10, 1967. The record does not reveal why or at whose insistence the trial date was changed. Also, the State raised the issue, in opposition to appellant's first motion to discharge, that the prosecuting witness, Gerry Quinn, was put in a state of fear by the appellants, thereby necessitating his hasty departure. While there may or may not be any merit to the State's charges, and the resetting of the trial date could be for many reasons, we cannot say positively from the record that the appellant in any way caused any delay of his trial after the change of venue was perfected to Sullivan County.

Appellant's motion to dismiss of July 7, 1967, omitting the caption and verification, reads as follows:

'Comes now Ronald Paul Norris, and being first duly sworn upon his oath, deposes and says:

1. That he is defendant in the above entitled cause, charged with the criminal offense of...