Reid v. State

• Citation: 12 Ind.Dec. 222,231 N.E.2d 808,249 Ind. 247
• Decision Date: 19 December 1967
• Docket Number: No. 30951,30951
• Parties: Debro REID, alias Jack Reid, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 808

231 N.E.2d 808

249 Ind. 247

Debro REID, alias Jack Reid, Appellant, v. STATE of Indiana, Appellee.

No. 30951.

Supreme Court of Indiana.

Dec. 19, 1967.

Isadore D. Rosenfeld, South Bend, for appellant.

John J. Dillon, Atty. Gen., of Indiana, Murray West, Deputy Atty. Gen., for appellee.

LEWIS, Judge.

This is an appeal from a conviction for statutory rape. Upon a plea of not guilty, trial was held without the intervention of a jury.

On appeal appellant raises these two alleged errors:

1. That the conviction was not sustained by sufficient evidence in that the State failed to prove venue.

2. That the Trial Court erred in granting a continuance to the prosecution over appellant's objection.

The prosecutrix testified that the offense in question occurred in the home of the appellant. A police officer testified that the appellant lived in St. Joseph County at the time of the crime. Venue need not be proved by the prosecuting witness alone, but may be proved from the totality of the evidence. In Croy v. State (1869), 32 Ind. 384, this Court held:

'* * * It is true that no witness directly so testified, but we think that the venue of the offense clearly appears from the evidence. * * *.'

The cases since this 1869 decision have consistently followed this reasoning.

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.

We conclude that the testimony establishing that the incident occurred in the appellant's home and that the appellant lived in St. Joseph County at the time of the occurrence is sufficient evidence from which a jury would be warranted in believing that venue had been proved.

Moving to appellant's second contention, the record reveals that at the time set for trial, the prosecuting witness was not present. In addition, the prosecuting attorney had failed to endorse the name of this material witness on the affidavit as provided by Burns' Indiana Statutes, Anno., § 9--909, (1956 Repl.), the pertinent part of which reads as follows:

'When any such affidavit has been made, as provided in the last section, the prosecuting attorney shall approve the same by indorsement, using the words 'approved by me' and sign the same as such prosecuting attorney and indorse thereon the names of all the material witnesses; after which such affidavit shall be filed with the clerk, who shall indorse thereon the date of such filing, and record the same as in the case of an indictment, as provided in section one hundred and thirteen (§ 9--904) of this act. Other witnesses may afterwards be subpoenaed by the state; but unless the names of such witnesses be indorsed on the affidavit at the time it is filed, no continuance shall be granted to the state on account of the absence of any witness whose name is not thus indorsed. * * *'

When the prosecuting attorney discovered that the witness was not going to appear in time for the commencement of the trial, he moved for and was granted a continuance until 1:30 P.M. of the same day to present his witness.

The exact conduct of the parties at the 9:00 A.M. appearance and the 1:30 P.M. appearance must be presented. The cause was set for trial at 9:00 A.M. on the 16th day of December, 1965. The appellant appeared, in person and by counsel, and the State called for two (2) witnesses, neither of whom appeared. The State then moved for a...