Reed v. State

Dissenting Opinion

Jackson, C. J.

— The majority opinion adequately discloses the factual and procedural issues before the Court in the case at bar. One Of the issues to be determined here is whether or not the State should be permitted, by leave of court, to reduce the time within which the Prosecuting Attorney is required to serve notice on the defendant or counsel pursuant to Acts 1935, ch. 228, §2, p. 1198, being §9-1632, Burns’ 1956 Eeplacement. Another question to be here determined is, can the State, after filing the notice required by §9-1632, Burns’, 1956 Eeplacement, supra, less than the eight days before trial, even within the period permitted by the court, introduce evidence in conflict with the evidence as to time and place specified by the defendant in his notice of alibi given the Prosecuting Attorney pursuant to §9-1632, Burns’ 1956 Eeplacement, supra.

I agree with the majority opinion in so far as it states that it was within the discretion of the Court to extend the time within which the Prosecuting Attorney could file and serve the statement required by §9-1632, supra. However, it is my opinion that the requirements of Acts 1935, ch. 228, §3, p. 1198, being §9-1633, Bums’ 1956 Eeplacement, would not allow the introduction of evidence by the Prosecuting Attorney in conflict with the notice of alibi unless the statement of the Prosecuting Attorney was received by the appellant prior to eight days before trial.

*553The purpose of these statutes is to give adequate notice and time for preparation to all parties concerning matters of alibi which they intend to prove-ait trial. If, as the majority opinion holds, such evidence may be admitted by the Prosecuting Attorney after he has received an extension of time, the appellant in this case will have less than the eight days allotted him by the statute for the purpose of preparation. In effect the appellant will be penalized for laxity of the Prosecuting Attorney over which he has no control. In addition, if the statement of the Prosecuting Attorney contains reference to times and places other than those contained in the original notice, the defendant may well be in a situation where he does not have adequate time to file a supplemental notice more than four days before trial, as provided by §9-1632, swpra. This penalizing of the appellant is especially repugnant in view of the fact that it might be so easily corrected, i.e., by the setting of a new trial date which will allow all parties concerned adequate time for preparation.

The cause should be reversed and remanded with instructions to grant appellant’s motion for a new trial.

Note. — Reported in 188 N. E. 2d 533.