145 N.E.2d 425 (Ind. 1957), 0-487, Sutton v. State

Docket Nº:0-487.
Citation:145 N.E.2d 425, 237 Ind. 305
Party Name:Paul SUTTON, Robert Sutton, Petitioners, v. STATE of Indiana, Respondent.
Case Date:October 25, 1957
Court:Supreme Court of Indiana

Page 425

145 N.E.2d 425 (Ind. 1957)

237 Ind. 305

Paul SUTTON, Robert Sutton, Petitioners,


STATE of Indiana, Respondent.

No. 0-487.

Supreme Court of Indiana.

October 25, 1957

[237 Ind. 306] Paul Sutton and Robert Sutton, pro se.

Edwin K. Steers, Atty. Gen., of Indiana, for appellee.


On August 26, 1957, appellants filed in this court, pro se, a petition entitled, 'Belated Appeal From the Grant County Circuit Court.'

It appears from the petition that sometime prior to May 1, 1957, the petitioners were tried by a jury in the Grant Circuit Court and found guilty; that they were represented by a court appointed lawyer who filed a motion for a new trial, which was overruled on May 1, 1957. Apparently no appeal was taken from this judgment.

If the petition herein is to be considered as one for an order of the Supreme Court authorizing them to [237 Ind. 307] take a belated appeal, one of the essentials for granting such a petition is that it state a prima facie case showing merit in the proposed appeal. Kirkland v. State, 1956, 235 Ind. 450, 452, 134 N.E.2d 223; Miller v. State, Ind.1957, 142 N.E.2d 432; Enlow, Parker v. State, 1956, 235 Ind. 697, 131 N.E.2d 466.

The petition fails to show in what manner the verdict of the jury is contrary to law, except that the court committed error in permitting a juror to sit after he was challenged, and that the court committed error in admitting the tape recording of defendant--Paul Sutton's confession.

The challenge to the juror was based upon the allegation '* * * that said

Page 426

juror had a conversation with a key witness who claims that he saw a 12 year old girl forced into a car containing the appellants [petitioners] herein.' It must be presumed that said juror was challenged for cause as provided in subsection two of Acts 1905, ch. 169, § 230, p. 584, being § 9-1504, second, Burns' 1956 Replacement.

Appellants have failed to show that their peremptory challenges had been exhausted at the time the juror was challenged for cause, and in such case the alleged error, if any, is waived. Rock v. State, 1916, 185 Ind. 51, 53, 110 N.E. 212.

The next and only other error assigned is based upon the alleged error of the trial court in admitting in evidence, over the objection of the petitioner--Paul Sutton, a tape recording of an oral confession made in the prosecutor's presence.


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