Blanton v. State, 29069
| Decision Date | 19 January 1954 |
| Docket Number | No. 29069,29069 |
| Citation | 233 Ind. 51,116 N.E.2d 631 |
| 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, Deputy Atty. Gen., for appellee.
The appellant's original brief in this case points out that when count two of the affidavit was filed, charging armed robbery, the appellant was present by counsel. Moreover, the record shows the following entry under date of May 3, 1952:
'Comes now the State of Indiana by Frank H. Fairchild, prosecuting attorney and by Wilbur Grant, his deputy; defendant appears in person and by counsel, Robert Rutherford; State files Court Two of Affidavit to-wit: Armed Robbery, which is as follows:' Here followed the affidavit charging armed robbery.
Nevertheless, the appellant in his petition for rehearing now insists he was not present either in person or by counsel at the time count two was filed. 'The record as embodied in a properly prepared and duly authenticated transcript imports absolute verity, and cannot be aided, varied, or contradicted by extrinsic evidence.' Elliott Appellate Procedure, § 186; and see Flanagan, Wiltrout & Hamilton, § 2292. However, there is actually some confusion in the record due to the fact that on May 3, 1952, there were two defendants in this case, one of them being one James Marshall who later entered a plea of guilty.
If the entry above referred to be construed as applying to Marshall, and not to the appellant, it would not change our conclusion in this case. The record discloses that the appellant appeared on several occasions by counsel subsequent to May 3, 1952, for various purposes. On October 14, 1952, the court gave its preliminary instructions to the jury pursuant to Rule 1-7a, wherein the court told the jury in the presence of the appellant and his two attorneys that the defendant was charged with robbery and with armed robbery, and the two counts of the affidavit were read. The applicable portions of the statutes defining those offenses were read, including the penalties that might be imposed on a conviction of those charges.
Although the appellant now represents that the first knowledge he had of the filing of the second count came during the opening statements to the jury which were made the following day, it is apparent that he and his attorneys must have learned and known thereof when the preliminary instructions were given, but no...
To continue reading
Request your trial
-
Randolph v. State, 28987
...denied his motion to dismiss because of alleged irregularities in the verdict and judgment. We recently said, In Blanton v. State, Ind.Sup.1954, 116 N.E.2d 631, at page 632; 'It is well settled that if a party has knowledge of a matter which will frustrate the trial in the end, he must avai......
-
State v. Parker
...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. Renner, supra; State v. Klasner, As above st......
-
Joseph v. State
...were prejudiced by any delay. Pitts v. State, 1939, 216 Ind. 168, 23 N.E.2d 673; Blanton v. State, 1954, 233 Ind. 51, 54, 115 N.E.2d 122, 116 N.E.2d 631; Henderson v. State, 1954, 233 Ind. 598, 602, 122 N.E.2d It is worthy of note, however, that the record does not show that their reason fo......
-
Calvert v. State, 31008
...appellant was present in the courtroom, he cannot successfully contend he was not. Blanton v. State (1954), 233 Ind. 51, 115 N.E.2d 122, 116 N.E.2d 631. The court clearly ordered the clerk to proceed under Burns' § 2--2004, and Burns' § 4--3320 was not Burns' § 4--3320 pertains solely to th......