Boatman v. State, 29370
| Decision Date | 24 September 1956 |
| Docket Number | No. 29370,29370 |
| Citation | 137 N.E.2d 28,235 Ind. 623 |
| Parties | Roy BOATMAN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Marshall, Hillis & Hillis, Paul I. Hillis, Kokomo, for appellant.
Edwin K. Steers, Atty. Gen., Owen S. Boling, Harriette Bailey Conn, Deputy Attys. Gen., for appellee.
Appellant was charged by affidavit with the crime of kidnapping, and after a trial by the court, a jury being waived, was convicted and sentenced to life imprisonment. He appeals from the judgment of conviction.
Appellant on this appeal relies on the following specifications of his assignment of errors, to-wit:
(1) The overruling of his motion for new trial, and
(2) Manifest error in the record in that the finding and decision of the court is not sustained by sufficient evidence and is contrary to law.
The second specification of the assignment of errors is improper and presents no question, as it is well settled the sufficiency of the evidence to sustain the finding or decision cannot be presented by an independent assignment of error. Instead, such ground should be set forth in the motion for new trial, and the action of the court in overruling the motion for new trial may then be assigned as error on appeal to raise the question. True v. State, 1950, 228 Ind. 565, 94 N.E.2d 452; Lowe's Rev. of Works' Ind. Pract. Vol. 4, § 70.73; 2 Gavit, Pleading and Practice, §§ 400, 419, 469.
Appellant, through his pauper counsel appointed to appeal this case, admits in his brief that 'procedural requirements for presenting errors were not followed in the motion for new trial 'filed by his trial counsel who has since withdrawn from the case, but asks that the court review the record insofar as it might disclose that his substantial rights were violated.
Appellant contends the record discloses appellant was permitted by his trial counsel to enter his plea to the affidavit the day after his arrest and that he had not ample opportunity to discuss material matters. Appellant further contends that he lost his fundamental right to test the sufficiency of the affidavit by entering his plea to the affidavit before filing motion to quash, and also to take a change of venue from the county as the motion therefor was not filed until the date of trial.
It appears in this case that appellant was represented from time of his arrest until after the overruling of his motion for new trial by counsel of his own choosing. We do not believe any showing has been made that appellant received only a 'perfunctory representation by counsel' as appeared in the case of Wilson v. State, 1943, 222 Ind. 63, 51 N.E.2d 848, 850, relied on by appellant.
We cannot conclude in the case before us that appellant was deprived of the opportunity of discussing his case with counsel before pleading to the charge simply because his counsel allowed him to plead not guilty the day after his arrest. It further appears appellant had an abundance of opportunity to consult with his counsel before the trial, as two months elapsed from the time he obtained during such period trial. Had he desired during such period to withdraw his plea or enter a different one, there is nothing to indicate he would not have been permitted to do so. This case is certainly distinguishable from Sweet v. State, 1954, 233 Ind. 160, 117 N.E.2d 745, cited by appellant, where the accused was given but three days within which to prepare for trial.
The filing of motion to quash after appellant had pleaded not guilty to the affidavit may have prevented the court from considering the merits of the motion to quash, as contended by appellant, as there is authority to the effect such a motion cannot properly be fined after a plea is entered unless the plea is withdrawn. Laycock v. State, 1894, 136 Ind. 217, 36 N.E. 137; Epps v. State, 1885, 102 Ind. 539, 1 N.E. 491; Joy v. State, 1860, 14 Ind. 139.
However, appellant has made no showing he was harmed thereby as his brief does not contend the motion to quash was meritorious or the affidavit defective, but merely that appellant could have raised a possible question by such a motion. This court will not attempt to second guess one's trial counsel as to what theoretical...
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