Stiles v. State, No. 1--1072A89

• Docket Nº: No. 1--1072A89
• Citation: 156 Ind.App. 675, 298 N.E.2d 466
• Case Date: July 09, 1973
• Court: Court of Appeals of Indiana

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.

[156 Ind.App. 677]

Page 467

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.

[156 Ind.App. 678] 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

Page 468

(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 [156 Ind.App. 679] in term time, in all cases...