Blanton v. State, 29069
| Decision Date | 27 October 1953 |
| Docket Number | No. 29069,29069 |
| Citation | 115 N.E.2d 122,233 Ind. 51 |
| Parties | BLANTON v. STATE. |
| Court | Indiana Supreme Court |
Edward C. Brennan, Obed T. Kilgore, Indianapolis, for appellant.
Edwin K. Steers, Atty. Gen., Owen S. Boling, Dep. Atty. Gen., for appellee.
Appellant was tried by jury and found guilty of the crime of robbery while armed. He was sentenced to a term of twenty years in the Indiana State Prison. He appeals, assigning as error the overruling of his motion for new trial.
On April 21, 1952, an affidavit in one count was filed against appellant charging him with the crime of robbery. On April 26 he entered a plea of not guilty. On May 3rd the state filed a second count charging robbery while armed. The trial was begun on October 15, 1952. Each count of the affidavit charges the same identical robbery, the only difference being that count one charges robbery, under Burns' 1942 Repl., § 10-4101, while the second charges robbery with a deadly weapon under § 10-4709. The appellant was convicted on the second count only.
The appellant says the filing of the second count constituted an amendment of the first count, which amendment was improper under Burns' 1942 Repl., § 9-1133 because it was an amendment which changed the crime sought to be charged after the appellant had entered his plea. Although the record shows that the appellant was present in person and by counsel at the time of the filing of count two of the affidavit no objection was made then or later to the filing thereof. Therefore no question with regard to the filing thereof is presented to this court.
The record does not show that the appellant was ever arraigned or that he ever entered a plea of not guilty to the second count of the affidavit, but the appellant proceeded to trial without any objection in the trial court that he had not been arraigned or that he had not been required to plead to the affidavit. The failure of the record to show an arraignment and plea, or either of them, does not invalidate a conviction unless the record shows that the defendant before the trial objected to entering upon the trial for lack of such arraignment or plea. Burns' 1942 Repl., § 9-1201. 'The appellant by proceeding to trial without objection * * * waived arraignment, and the statute put in a plea of not guilty for him.' Harvey v. State, Ind.Sup., 1953, 114 N.E.2d 457, 458.
Before trial the appellant filed a motion to suppress evidence. Evidence thereon was heard out of the presence of the jury, and the motion was overruled, and that ruling is assigned as error. The evidence heard upon the trial of the issue of the appellant's guilt or innocence is not presented to this court. Therefore, no question of the correctness of the court's ruling on the motion to suppress evidence is presented. We are unable to determine whether the evidence which the appellant sought to suppress was introduced against him on the trial of the main issue. We, therefore, cannot determine whether error in the overruling of the motion to suppress evidence, if such there was, was prejudicial to the appellant. 'The appellant must show affirmatively by the record that there was an error prejudicial to his substantial right before he is entitled to a reversal on appeal.' Pitts v. State, 1939, 216 Ind. 168, 23 N.E.2d 673, 674.
It is asserted that the court erred in admitting in evidence the testimony of certain...
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State v. Parker
...his readiness for trial and proceeding to trial, he waived his right to be arraigned. See Beaty v. United States, supra; Blanton v. State, 233 Ind. 51, 115 N.E.2d 122, 116 N.E.2d 631 (1953); In re Bundy, 144 Kan. 64, 58 P.2d 80 (1936); State v. Vallo, 33 S.W.2d 899 (Mo.1930); State v. Renne......
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