Stiles v. State

• Decision Date: 09 July 1973
• Docket Number: No. 1--1072A89,1--1072A89
• Citation: 156 Ind.App. 675,298 N.E.2d 466
• Parties: Donald D. STILES, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 466

298 N.E.2d 466

156 Ind.App. 675

Donald D. STILES, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--1072A89.

Court of Appeals of Indiana, First District.

July 9, 1973.

Lind, Deckard, O'Brien & Lawson, Danville, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for plaintiff-appellee.

ROBERTSON, Presiding Judge.

Defendant-appellant (Stiles) brings this appeal on a conviction of Rape from the Hendricks Circuit Court. He raises six specifications of error:

1) the verdict is against the weight of the evidence;

2) the verdict is contrary to law;

3) the trial court erred in overruling defendant's motion to be discharged and not tried for the reason that the affidavit upon which the prosecutor brought charges was invalid which thereby deprived the trial court of subject matter jurisdiction;

4) the trial court erred in refusing to submit to the jury the defendant's tendered final Instruction No. 3;

5) defendant was denied his constitutional right to a speedy trial when the trial court failed to sentence him within 30 days of the guilty verdict pursuant to Indiana Criminal Rule 11;

6) sentencing of the defendant was invalid because the jury did not fill in the blanks on the verdict form as to the true age of defendant.

The allegation concerning the age line being left blank on the verdict form is waived by Stiles for failure to present any argument on the point in his brief. Indiana Appellate Rule 8.3(A); Willsey v. Hartman (1971), Ind.App., 269 N.E.2d 172.

As to the issue of the sufficiency of the evidence, the rule is that a conviction must be affirmed if there is evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Gann v. State (1971), Ind., 269 N.E.2d 381; Asher v. State (1969), 253 Ind. 25, 244 N.E.2d 89. The court will not weigh the evidence nor resolve the question of credibility, but will look to the evidence most favorable to the state and the reasonable inferences therefrom which support the verdict of the jury. Washington v. State (1971), Ind., 271 N.E.2d 888; Davis v. State (1971), Ind., 271 N.E.2d 893.

The facts most favorable to the state show that while the prosecutrix was waiting for a bus on Washington Street in Indianapolis, Stiles stopped his car alongside the curb where she was standing. Initially Stiles pretended to need directions, but then he produced a gun and forced her into his car. Stiles took the victim to a house he rented in Hendricks County. The victim's delaying tactics and resistance were overcome by Stiles, and he proceeded to have forcible intercourse with her.

Based on this evidence we cannot conclude that the verdict was not sufficiently supported by evidence of probative value.

Stiles next contends that the trial court lacked subject matter jurisdiction because of the invalid manner in which charges were instituted against him. He relies on IC 1971, 33--14--1--3, Ind.Ann.Stat. § 49--2503 (Burns 1964), which states:

'Whenever any prosecuting attorney shall receive information of the commission of any felony or misdemeanor, he shall cause process to issue from a court having jurisdiction to issue the same (except the circuit court), to the proper officer, directing him to subpoena the person therein named likely to be acquainted with the commission of such felony or misdemeanor, and shall examine any person so subpoenaed before such court touching such offense; and if the facts thus elicited are sufficient to establish a reasonable presumption of guilt against the party charged, said court shall cause so much of said testimony as amounts to a charge of a felony or misdemeanor to be reduced to writing and subscribed and sworn to by such witness, whereupon such court shall cause process to issue for the apprehension of the accused, as in other cases.'

This prescribes, according to Stiles, the vehicle of indictment as the mandatory procedure by which a criminal prosecution is to be brought in circuit court.

The state instituted charges against Stiles by filing an affidavit pursuant to the following statutes:

'All public offenses, except treason and murder, may be prosecuted in the circuit or criminal court, by affidavit filed in term time, in all cases except when a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of such affidavit. And such affidavit may be filed in vacation time as in term time and the judge may arraign and admit to bail as in term time, or may receive a plea of guilty and proceed forthwith as in term time. When criminal affidavits are filed by the prosecuting attorney in vacation, the clerk of the court shall forthwith issue a warrant or summons, according to the direction of the prosecuting attorney, and indorse thereon the amount of the recognizance bond in accordance with the bond schedule order made by the judge of said court at the last regular term.' (emphasis added) IC 1971, 35--1--16--9, Ind.Ann.Stat. § 9--908 (Burns 1972 Supp.)

'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. And the record of such affidavit and indorsements thereon, or a copy thereof certified to be a true copy by the clerk of the court, shall be sufficient evidence of the making and filing of such affidavit and the contents thereof; and the defendant may be tried upon such copy, all as provided in section one hundred and fifteen ( § 9--905) of this act in case of trial on copy of indictment.' IC 1971, 35--1--16--10, Ind.Ann.Stat. § 9--909 (Burns 1956)

To the extent Burns § 49--2503 prohibits, or can be read to prohibit, the bringing of criminal charges by affidavit in a circuit court, it has been repealed by implication by the subsequent enactment of Burns §§ 9--908, 9--909, which clearly authorizes the bringing of criminal charges, with the exception of murder and treason, by affidavit in a circuit court.

Stiles argues in the alternative that Burns § 49--2503 prohibits a circuit court judge from deciding probable cause in a case which he will later try on the merits. Having determined probable cause, the judge is supposedly incapable of impartiality in the subsequent trial. In answer, we refer appellant to State ex rel. French v Hendricks Sup. Ct. (1969), 252 Ind. 213, 223, 247 N.E.2d 519, 525, wherein the court stated that 'the mere fact that a judge has ruled upon a showing of probable cause does not...