Bennett v. State, No. 2--473A101

Docket NºNo. 2--473A101
Citation304 N.E.2d 827, 159 Ind.App. 59
Case DateDecember 26, 1973
CourtCourt of Appeals of Indiana

Page 827

304 N.E.2d 827
159 Ind.App. 59
Dan BENNETT, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 2--473A101.
Court of Appeals of Indiana, Second District.
Dec. 26, 1973.

John Newton Merritt, Noblesville, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY

Defendant-Appellant Dan Bennett (Bennett) appeals from trial court convictions of Second Degree Burglary and Theft, claiming denial of fair trial because of misconduct by the trial judge, this issue not having been [159 Ind.App. 60] raised in the Motion to Correct Errors or by timely objection during trial.

We affirm.

FACTS

On October 19, 1972, Bennett was tried by the court sitting without a jury on charges of Burglary in the Second Degree

Page 828

and Theft. The proceedings were punctuated from time to time by comments of the trial judge as to testimony by witnesses and defense counsel's presentation of his case.

Defense counsel did not at any time object to these comments.

Following trial, Bennett was found guilty of the crimes charged and sentenced to imprisonment for two to five years on Burglary and one to five years on Theft.

Bennett's Motion to Correct Errors was timely filed on December 22, 1972. No memorandum was attached. It failed to state the facts and grounds upon which the claimed errors were based. No reference was included as to misconduct by the trial judge or to any other specific error.

Omitting formal parts, the Motion reads:

'Comes now the Defendant, by Counsel, and moves the Court to correct its judgment in the above captioned cause of action for the following reasons:

'1. That there was a denial of a fair trial by any irregularity in the proceeding of the Court, Jury or prevailing party, or any order of Court, abuse of discretion, misconduct of the jury or prevailing party;

'2. That there was surprise which ordinary prudence could not have guarded against;

'3. That the verdict is not supported by sufficient evidence upon all necessary elements to prove the offense charged; and

'4. That there were uncorrected errors of law occurring and properly raised in the proceedings or prior to, at or subsequent to the trial.'

Bennett's Motion to Correct Errors was overruled and he appeals claiming misconduct of the trial judge as the sole basis for reversal.

[159 Ind.App. 61] ISSUE

Is Bennett's Motion to Correct Errors specific enough to

present the claimed error of the misconduct of the

trial judge?

As our examination of the Motion to Correct Errors causes us to question, sua sponte, the sufficiency of the Motion to Correct Errors, we do not reach the issue of the alleged misconduct of the trial judge argued by the parties.

DECISION

CONCLUSION--It is our opinion that Bennett's Motion to Correct Errors is not specific enough to present the claimed error of the alleged misconduct of the trial judge.

Unfortunately Bennett has done no more than set out verbatim in his Motion to Correct Errors the language of Rule TR. 59(A)(1), (2), (4), and (5), IC 1971, 34--5--1--1, which lists some of the errors which might be the basis for the trial court granting a new trial or other appropriate relief under Rule TR. 59(E).

The Motion to Correct Errors is required by Rule TR. 59(B) to '. . . be specific rather than general, and shall be accompanied by a statement of the facts and grounds upon which errors are based.' Further emphasis to the requirement of specificity as to each error relied upon is provided by Rule TR. 59(G) which states:

'. . . such motion shall separately specify as grounds therefor each error relied upon however and whenever arising up to the time of...

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42 practice notes
  • Board of Com'rs of Howard County v. Kokomo City Plan Commission, No. 2-473A88
    • United States
    • Indiana Court of Appeals of Indiana
    • May 20, 1974
    ...court, which is already familiar with all aspects of the proceedings, to rectify its own errors, if any. Bennett v. State (1973) Ind.App. 304 N.E.2d 827; Bud Gates, Inc. v. Jackson (1970) 147 Ind.App. 123, 258 N.E.2d Second, the motion serves as a presentation of alleged errors to the appel......
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...justice or to prevent the denial of fundamental rights. Winston v. State (1975), Ind.App., 332 N.E.2d 229; Bennett v. State (1973), 159 Ind.App. 59, 304 N.E.2d Defendant contends that the trial court's communication with the jury, which concerned the substantial rights of the Defendant and ......
  • Skolnick v. State, No. PS
    • United States
    • Indiana Court of Appeals of Indiana
    • April 25, 1979
    ...the substantial purpose of "afford(ing) the trial court the opportunity to rectify errors it has committed," Bennett v. State (1973), 159 Ind.App. 59, 304 N.E.2d 827, we sustain the 2 Portage National Bank v. Skaggs, No. 75-PSC-1233, was an action on a promissory note. Parties to the action......
  • Lugar v. State ex rel. Lee, No. 2-675A145
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1978
    ...was not heard by the Court; (5) that the question of estoppel was not heard by the Court." 4 See Bennett v. State (2d Dist.1973), 159 Ind.App. 59, 304 N.E.2d 827, 5 Prior case law has held that longevity pay falls within the definition of "salary" for computing pension benefits. City of Vin......
  • Request a trial to view additional results
42 cases
  • Board of Com'rs of Howard County v. Kokomo City Plan Commission, No. 2-473A88
    • United States
    • Indiana Court of Appeals of Indiana
    • May 20, 1974
    ...court, which is already familiar with all aspects of the proceedings, to rectify its own errors, if any. Bennett v. State (1973) Ind.App. 304 N.E.2d 827; Bud Gates, Inc. v. Jackson (1970) 147 Ind.App. 123, 258 N.E.2d Second, the motion serves as a presentation of alleged errors to the appel......
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...justice or to prevent the denial of fundamental rights. Winston v. State (1975), Ind.App., 332 N.E.2d 229; Bennett v. State (1973), 159 Ind.App. 59, 304 N.E.2d Defendant contends that the trial court's communication with the jury, which concerned the substantial rights of the Defendant and ......
  • Skolnick v. State, No. PS
    • United States
    • Indiana Court of Appeals of Indiana
    • April 25, 1979
    ...the substantial purpose of "afford(ing) the trial court the opportunity to rectify errors it has committed," Bennett v. State (1973), 159 Ind.App. 59, 304 N.E.2d 827, we sustain the 2 Portage National Bank v. Skaggs, No. 75-PSC-1233, was an action on a promissory note. Parties to the action......
  • Lugar v. State ex rel. Lee, No. 2-675A145
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1978
    ...was not heard by the Court; (5) that the question of estoppel was not heard by the Court." 4 See Bennett v. State (2d Dist.1973), 159 Ind.App. 59, 304 N.E.2d 827, 5 Prior case law has held that longevity pay falls within the definition of "salary" for computing pension benefits. City of Vin......
  • Request a trial to view additional results

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