Adams v. State, 28730
| Docket Nº | No. 28730 |
| Citation | 230 Ind. 53, 101 N.E.2d 424 |
| Case Date | November 09, 1951 |
| Court | Supreme Court of Indiana |
Page 424
v.
STATE
[230 Ind. 54]
Page 425
Walter J. Bixler, and Cuthbertson & Cuthbertson, Peru, for appellant.J. Emmett McManamon, Atty. Gen., George W. Hand, John Ready O'Connor, Deputies, for appellee.
[230 Ind. 55] EMMERT, Judge.
This is an appeal from a judgment in two parts, which sentenced the appellant to the Indiana State Prison for a term of not less than one nor more than ten years under the first count of the affidavit, and also sentenced the appellant to said institution for a term of not less than two nor more than five years under the second count of said affidavit. Appellant had entered a plea of guilty to both counts without being represented by counsel. But after the plea and before judgment he had employed counsel who, first, orally moved to withdraw the plea of guilty, and then before the ruling of the court thereon, filed an unverified motion to withdraw the plea. Before sentence, the written motion was overruled.
The first count of the affidavit charged the appellant and seven others with the larceny of $150 from Post No. 1343 Veterans of Foreign Wars, and no question is presented concerning the form of this count.
However, the charge in the second count of the affidavit is material to the consideration of appellant's contention that he was denied representation by counsel in violation of his constitutional rights. It charged that appellant and seven others did '* * * unlawfully, feloniously and burglariously, enter into the place of business of the Veterans of Foreign Wars, Post No. 1343, Lake Manitou, Indiana, with the intent then and there feloniously and burglariously, to take, steal and carry away the goods, chattels and personal property of the said Veterans of Foreign Wars, Post 1343, Lake Manitou, Indiana, * * *.' (Italics supplied.) This charged the offense of entering to commit a felony under § 10-704, Burns' 1942 Replacement, the material parts of said section being as follows: 'Whoever enters any * * * businesshouse * * *, with the [230 Ind. 56] intent to commit a felony therein, shall, on conviction, be imprisoned for not less than one (1) year nor more than ten (10) years, and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.' Acts of 1905, ch. 169, § 374, p. 584; 1907, c. 72, § 1, p. 100; 1927, ch. 203, § 3, p. 580; 1941 ch. 148, § 5, p. 447. The second count faild to charge the offense of burglary in the second degree as defined by § 10-701(b), Burns' 1942 Replacement. This statute provides: '(b) Whoever breaks and enters * * * any building or structure other than a dwelling-house or place of human habitation, with the intent to commit a felony the therein, shall be guilty of burglary in the second degree, and upon conviction shall be imprisoned not less than two (2) years nor more than five (5) years and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period: * * *.'
The material part of the record of the proceedings had by the trial court at the time of arraignment, as required by Rule 1-11, is as follows:
Questions by the court:
'Q. You have all been brought into Court here by way of an affidavit in two counts, Grand Larceny and Second Degree Burglarly. Those are the charges that exist against all of you people. I am going to ask the Prosecuting Attorney to read you the affidavit, and I am going to ask all of you to listen carefully to the reading of the affidavit, as that tells you what you are charged with.
* * *
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Page 426
'Q. You have heard the reading of the affidavit, that told you what you are charged with. Upon a plea of guilty or upon conviction of the offenses as charged, these are the penalties that would apply: (H. I. Section 10-3001 and Section 10-701B, Burns Indiana States) You are entitled to the services of an attorney before you make [230 Ind. 57] your plea. Do you folks have an attorney to represent you before you make your plea? (All defendants said, No.)'Q. Do you care for time to get an attorney to counsel with before you enter your plea? * * *
* * *
* * *
'Q. And you, Raymond Adams, do you care for time to get an attorney before entering your plea? A. (By Raymond Adams, Appellant) No, your honor.
* * *
* * *
'Q. You have heard the reading of the affidavit and the penalties that would apply upon a plea of guilty or upon conviction of the offenses as charged. Are you ready at this time to enter your plea? * * *
* * *
* * *
'Q. Raymond Adams, are you ready at this time to enter your plea? A. Yes.
'Q. What is your plea? A. Guilty.
* * *
* * *
'Q. Raymond Adams, what is your age? A. Thirty.
The court then addressed the Prosecuting Attorney as follows, to-wit:
'Q. What is the situation here, Mr. Prosecutor: A. If the...
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Woods v. Anderson, Cause No. IP99-0520-C-M/S (S.D. Ind. 2/2/2004), Cause No. IP99-0520-C-M/S.
...record, the court will not be bound by procedural irregularities." Snow v. State, 199 N.E.2d 469, 471 (Ind. 1964) (citing Adams v. State, 101 N.E.2d 424 (1951)). Woods' view that including this claim in the appeal from the denial of post-conviction relief would have been "too little, too la......
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Woods v. Anderson, IP99-0520-C-M/S.
...the court will not be bound by procedural irregularities." Snow v. State, 245 Ind. 423, 199 N.E.2d 469, 471 (1964) (citing Adams v. State, 230 Ind. 53, 101 N.E.2d 424 (1951)). Woods' view that including this claim in the appeal from the denial of post-conviction relief would have been "too ......
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Winn v. State, 28845
...832, 835, supra; Todd v. State, 1948, 226 Ind. 496, 508, 81 N.E.2d 530, 81 N.E.2d 784, 786, 82 N.E.2d 407.' See also Adams v. State, 1951, 230 Ind. 53, 101 N.E.2d Under the above authorities it is quite obvious appellant was denied his right to representation by counsel both under the India......
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Lisenko v. State, 3--575A78
...filed against appellants properly charged, in each instance, the offense of entering to commit a felony. Adams v. State (1951), 230 Ind. 53, 101 N.E.2d 424. Under the statute, IC 1971, 35--13--4--5, supra, and informations filed herein, the State was required to establish two elements: 1) e......