Randolph v. State, 28987

• Decision Date: 07 December 1954
• Docket Number: No. 28987,28987
• Parties: Jack RANDOLPH, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 860

122 N.E.2d 860

234 Ind. 57

Jack RANDOLPH, Appellant, v. STATE of Indiana, Appellee.

No. 28987.

Supreme Court of Indiana.

Dec. 7, 1954.

James L. Puckett, Sr., Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Thomas M. Crowdus, Deputy Attys. Gen., for appellee.

BOBBITT, Judge.

Appellant, with three others, was indicted in two counts (1) for murder in the perpetration of a robbery under Acts 1941, ch. 148, § 6, p. 447, being § 10-4101, Burns' 1942 Replacement; and (2) for second degree murder. He was granted a separate trial, tried by jury, found guilty as charged in count one of the indictment and sentenced to life imprisonment.

Three errors are assigned as follows:

1. That the court erred in over-ruling the Appellant's motion to suppress the evidence.

2. The court erred in over-ruling the Appellant's Motion to discharge.

3. That the Court erred in over-ruling the Appellant's Motion for New Trial.

First: Assigned error number one is not supported by the record, nor is it discussed in the argument section of appellant's brief. It is, therefore, waived and no question is presented thereby for our consideration. Rule 2-17(e) and (f), Indiana Supreme Court, 1954 Ed.

Second: Assigned error number two and specifications 22 and 23 in the motion for a new trial pertain to the same alleged error, i. e., the overruling of appellant's motion to be discharged under Acts 1927, ch. 132, § 12, p. 411, being § 9-1402, Burns' 1942 Replacement.

Appellant was indicted on June 20, 1951, and on the same day committed upon the indictment to the Hancock County jail.

After various delays, which we need not discuss for reasons that will subsequently appear, appellant was brought to trial on February 11, 1952. The trial was concluded and the verdict of the jury returned on February 14, 1952. The verdict was filed and, by agreement of counsel, no further steps were taken at that time except to discharge the jury and return the prisoner to the sheriff in the Hancock County Jail.

On March 15, 1952 appellant filed a motion for discharge based on alleged irregularities in the verdict and judgment. This motion was overruled and appellant then filed a motion for discharge under the provisions of § 9-1402, supra. ¹

That part of § 9-1402, supra, which limits the time within which the State must proceed to trial serves the same purpose as Acts 1905, ch. 169, § 220, p. 584, being § 9-1403, Burns' 1942 Replacement, and is also in aid of Article 1, Section 12 of the Indiana Constitution, and a limitation upon the right of the State to hold a defendant in jail without trial. Zehrlaut v. State, 1951, 230 Ind. 175, 183, 102 N.E.2d 203; State v. Huebner (State v. Gardner), Ind.Sup.1954, 122 N.E.2d 88; McGuire v. Wallace, 1887, 109 Ind. 284, 287, 10 N.E. 111.

The statute is a legislative indication of what is a reasonable time within which the case should be brought to trial in order to satisfy the constitutional requirements that justice be administered 'speedily and without delay'. State v. Kuhn, 1900, 154 Ind. 450, 453, 57 N.E. 106, 107; Liese v. State, Ind.Sup.1954, 118 N.E.2d 731.

The primary and specific purpose of the statute is to provde a speedy trial on a criminal charge. Can a defendant, after he has been tried and convicted, invoke a statute the purpose of which is to insure him a speedy trial, for the purpose of effecting his discharge because he was not brought to trial within the time prescribed by such statute?

The constitutional right to a trial by jury may be waived. Lucas v. State, 1949, 227 Ind. 486, 489, 86 N.E.2d 682.

The right to a trial without delay, guaranteed by Article 1, Section 12 of the Indiana Constitution, is a right of equal importance to that of trial by jury. It seems a truism that if one of these rights may be waived, the other may also be waived. For waiver of right to trial without delay, see People v. Sweeney, 1951, 409 Ill. 223, 99 N.E.2d 143; People v. Lantz, 1944, 387 Ill. 72, 55 N.E.2d 78; People v. Harris, 1922, 302 Ill. 590, 135 N.E. 75; State v. Test, 1922, 65 Mont. 134, 211 P. 217, 218; Levine v. United States, 8 Cir., 1950, 182 F.2d 556, 558, certiorari denied 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665.

The right of a defendant to a discharge for failure of the State to put him on trial within the time required by statute is one personal to the defendant and may be waived by his own conduct. People v. Lantz, 1944, 387 Ill. 72, 55 N.E.2d 78, supra; State v. Kleier, 1949, 69 Idaho 278, 206 P.2d 513, 518; King v. State, 1921, 23 Ariz. 49, 201 P. 99, 100; State v. Hicks, 1945, 353 Mo. 950, 185 S.W.2d 650, 651; Pines v. District Court in and for Woodbury County, 1943, 233 Iowa 1284, 10 N.W.2d 574, 583; 14 Am.Jur., Criminal Law, § 138, p. 863.

It has generally been held that the right to a discharge for delay in bringing a defendant to trial is waived if the proper motion is not made before the trial begins. State v. Suspirata, 1943, 71 Ohio App. 500, 50 N.E.2d 270, dismissed 141 Ohio St. 456, 48 N.E.2d 468; Keller v. State, 1933, 126 Ohio St. 342, 185 N.E. 417; State v. Thomas, 1939, 1 Wash.2d 298, 95 P.2d 1036, 1037; People v. Mitsunaga, 1928, 91 Cal.App. 298, 266 P. 1020, 1021; People v. Newell, 1924, 192 Cal. 659, 221 P. 622, 626; Ex parte Apakean, 1923, 63 Cal.App. 438, 218 P. 767; State v. Test, 1922, 65 Mont, 134, 211 P. 217, supra; King v. State, 1921, 23 Ariz. 49, 201 P. 99, supra; Commonwealth v. Halderman, 1930, 299 Pa. 198, 149 A. 476; Daniels v. United States, 1927, 9 Cir., 17 F.2d 339, 343, certiorari denied 274 U.S. 744, 47 S.Ct. 591, 71 L.Ed. 1325; 22 C.J.S., Criminal Law, § 470(a), p. 720.

In this case appellant participated in the trial without objection. By his acquiescence and participation in the trial appellant conclusively waived his rights under the statute. By such acts he aided in the consummation of the very act which the statute, if timely invoked, might have prevented. The motion for discharge was not filed until after (1) the trial of defendant-appellant had been completed, (2) the verdict of the jury returned and the jury discharged, and (3) the court had denied his motion to dismiss because of alleged irregularities in the verdict and judgment.

We recently said, In Blanton v. State, Ind.Sup.1954, 116 N.E.2d 631, at page 632;

'It is well settled that if a party has knowledge of a matter which will frustrate the trial in the end, he must avail himself of the earliest opportunity to arrest the proceeding or he will be deemed to have waived his right to object when the end is reached. He will not be permitted to go on without objection, taking his chances of ultimate success, and afterwards go back and impeach the trial in case he is disappointed at the result. Miller, Jr. v. State, Ind.Sup., 1953, 115 N.E.2d 120, and authorities cited.' See also Ewbank's Criminal Law, 2d ed., § 679, p. 498.

In this case appellant knew, at the time his case was set for trial, all of the facts alleged in his motion for discharge. Such alleged facts, if true, would have prevented the trial. Under these circumstances appellant could not sit by without objection, taking his chances of ultimate success, and afterwards file his motion for discharge when he was disappointed in the result of the trial.

The cases which hold that the right to discharge is waived if the proper motion therefor is not made before the trial begins are based upon sound reasoning. We believe the legislature intended that this should be the rule in Indiana.

This court has held that a provision of § 9-1403, Burns' 1942 Replacement, supra, similar to that in § 9-1402, Burns' 1942 Replacement, supra, and here under consideration, casts no burden upon the defendant to make any demand of the State or the court for a speedy trial; but such demand is made for him by the Constitution and its implementing statute and may not be ignored by the State without incurring the penalty provided by statute. Zehrlaut v. State, 1951, 230 Ind. 175, 183-184, 102 N.E.2d 203, supra.

Neither this constitutional provision ² nor the implementing statute is self-executing. While it is true that there is no burden upon the defendant to request a speedy trial, nevertheless, if the terms of court specified in the statute go by and he is, through no fault of his own, not brought to trial, the burden of invoking the statute then falls upon him and his rights thereunder can be asserted only through some affirmative action on his part.

The question of loss of rights by failure to demand a speedy trial is not involved in the case at bar. We are concerned here only with the failure of appellant to invoke the statute ³ before his trial was commenced.

While the Constitution and its implementing statute made the demand for a speedy trial for the appellant herein, they did not, nor did either of them, require the court to invoke and enforce the provisions of the statute on behalf of appellant without a proper request from him so to do.

Appellant proceeded to trial without raising, by appropriate means, the question of his being held in jail beyond the time fixed by statute. He thereby waived his rights to a speedy trial under both the statute and the Constitution.

There was no error in overruling appellant's motion for discharge.

Third: The motion for a new trial contains 26 specifications or grounds therefor. Specifications 1, 2, 3, 4, 5, 6, 10, 12, 15, 16, 17, 18, 19, 20, 21, 24, 25 and 26 are not discussed in the argument section of appellant's brief and are, therefore, waived. Rule 2-17(e) and (f) of this court, 1954 ed.

Fourth: By specification 7 appellant claims error in the admission of the State's Exhibit 5, which purports to be a photograph of appellant's automobile. It is asserted that such exhibit should have been excluded because the testimony of the identifying witness is at variance with the actual photograph, in that the photograph could not be a true and exact representation of the...