Summary
In State ex rel. Johnson v. Kohlmeyer, 261 Ind. 244, 303 N.E.2d 661 (Ind. 1973) (opinion on rehearing), the defendant was incarcerated in Johnson County when he was indicted in Marion County. An arrest warrant was issued and served on the defendant, but no return of the warrant was filed until much later.
Summary of this case from Feuston v. StateOpinion
Ferdinand Samper, Sr., Sampers&sSamper, Indianapolis, for relator.
David L. Millen, Marion County Deputy Prosecutor, Indianapolis, for respondents.
ON PETITION FOR REHEARING
GIVAN, Justice.
Relator has filed a petition for rehearing in this cause in which he urges that this Court, 301 N.E.2d 518, is in error in holding that relator's incarceration in Johnson County was unrelated to the indictment filed in Marion County. In an attempt to support his position, the relator has set forth two hypotheticals in his petition for rehearing.
In his first hypothetical the relator cites a situation in which a warrant was issued in one county and an arrest made in another county on said warrant. The relator assumes that even though no charge was pending in the county in which the arrest took place, the arrested person could be left in that county for an indefinite period of time before being returned to the charging county.
In his second hypothetical, relator asks if three distinct crimes are charged in one county would he not be permitted a discharge after seven months of incarceration on each of the three charges.
The relator has misconstrued the law in this case. In the first hypothetical the person charged would be held to answer to the charge from another county, that being the only charge against the arrested person. The State would be required to comply with Rule CR. 4(A).
In his second hypothetical all three charges being in the same county, each charge would be governed by Rule CR. 4(A), and the State would be required in each case to either bring the accused person to trial during the period required or to state why such could not be accomplished as set forth in the rule.
In the case at bar neither of these situations prevails. The relator had been arrested by the authorities of Johnson County pursuant to a warrant issued in that jurisdiction. The service of a capias issued by Marion County subsequent to the arrest in Johnson County served only as a 'hold' for Marion County. The Supreme Court of the United States has noted that where a person is charged with more than one crime he cannot be tried for all at the same time. His rights to a speedy trial must be considered with regard to the practical administration of justice. Beavers v. Haubert (1905), 198 U.S. 77, 86, 25 S.Ct. 573, 49 L.Ed. 950, 954.
The authorities of Johnson County were entitled to carry out their duties pursuant to the warrant issued in that county before surrendering the relator to Marion County. This would be true even if the Sheriff of Johnson County had immediately made return on the capias issued by the judge in Marion County and the Marion County Judge had been fully aware of the fact that relator was being held in Johnson County. In the case at bar, however, we have the additional fact that the Sheriff of Johnson County did not, in fact, make a return on the capias issued by Marion County and, as a result, the issuing judge in Marion County did not have the situation called to his attention.
In a situation somewhat different in fact, but with reasoning which applies equally to the case at bar, the Supreme Court of the United States has stated that where a situation was unknown to the trial judge, even though known to the accused (in the case at bar the accused knew he had been served with the capias; the respondent did not know relator had been served with the capias), any delay caused by such an error was not purposeful or oppressive and should not effect the release of the accused. See Pollard v. United States (1957), 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393.
We, therefore, reiterate that under the facts in this case Rule CR. 4(A) became operative as to relator's case when he was returned to Marion County under the authority of the capias issued by the respondent court.
Petition for rehearing is, therefore, denied.
ARTERBURN, C.J., and HUNTER and PRENTICE, JJ., concur.
DeBRULER, J., votes to grant rehearing.