Bradley v. State

• Decision Date: 18 March 1949
• Docket Number: 28473.
• Citation: 84 N.E.2d 580,227 Ind. 131
• Parties: BRADLEY v. STATE. TAYLOR v. STATE.
• Court: Indiana Supreme Court

84 N.E.2d 580

227 Ind. 131

BRADLEY v. STATE.

TAYLOR v. STATE.

No. 28473.

Supreme Court of Indiana

March 18, 1949

Appeal from Criminal Court, Marion County; Joseph M. Howard, judge.

Frank A. Symmes and Thurl C. Rhodes, both of Indianapolis, for appellants.

Frank E. Coughlin, Deputy Atty. Gen., for appellee.

GILKISON, Judge.

Appellants were charged by an affidavit in two counts in the trial court. By Count 1, they, with one Tommie Gardner, were charged with robbing one John McCarty of $5,000 in currency and checks, by violence and putting him in fear on July 6 1947. By Count 2, they, with Gardner, were charged with robbing John McCarty of $5,000 in currency and checks, by violence and putting him in fear, and with inflicting a would and physical injury upon him with a club while they were engaged in the commission of the robbery.

Appellants entered pleas of not guilty and upon trial by jury they were each found guilty as charged in Count 2. A separate motion for new trial by each appellant, timely filed, was overruled. From a judgment sentencing each of them to the Indiana State Prison for life, this appeal is taken.

Appellants appear in this court by separate attorneys and file separate briefs. Appellant, Bradley, assigns as errors: 1. Overruling his motion for new trial; 2. Overruling appellant Taylor's motion for new trial; 3. Overruling his motion for a continuance; and 4. Overruling appellant, Taylor's motion to suppress evidence.

Appellant Taylor, assigns as errors: 1. Overruling appellant Bradley's motion for new trial; 2. Overruling his motion for new trial; 3. Overruling appellant, Bradley's motion for continuance and 4. Overruling his motion to suppress evidence.

Appellant, Bradley, has properly presented for review the action of the trial court in denying his verified motion for continuance.

In this motion he avers that he was returned from the Indiana Reformatory on March 19, 1948, and produced in court at 4:00 o'clock p. m. on that date. That the court, at that time, set appellant, Bradley's trial for Monday, March 22, 1948 at 9:30 a. m. That the court had appointed attorneys, John Mattocks and Thurl C. Rhodes to represent him, and he had not had an opportunity to talk with them. That the attorneys had made no preparations for trial whatever. That it was impossible for the attorneys to properly prepare the case for trial by jury within the time allowed. That since the penalty provided could be life imprisonment, defendant desired additional time for his attorneys to make adequate preparation for his trial. That he had a good defense.

Art. 1, § 13, Constitution of Indiana provides: 'In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; * * *.'

Amendment 14, § 1, United States Constitution provides, among other things: '* * *. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; * * *.'

The right of a defendant who is charged with crime to be represented by competent counsel is not open to question in this state. Webb v. Baird, 1854, 6 Ind. 13, 18; Hendryx v. State, 1892, 130 Ind. 265, 269, 29 N.E. 1131; Wilson v. State, 1943, 222 Ind. 63, 78, 83, 51 N.E.2d 848; Todd v. State, 1948, Ind.Sup., 81 N.E.2d 784; Hoy v. State, 1947, 225 Ind. 428, 75 N.E.2d 915.

Such defendant has a right to have an attorney of his own choice if he is financially able to employ such an attorney. If he is not financially able to employ an attorney of his own choice, it is the duty of the court to select a competent attorney for him at public expense, whether the defendant requests it or not. There can be no valid trial of a criminal case unless a defendant is adequately defended by counsel, if he desires counsel; a judgment rendered under such circumstances is void. Knox Co. Council v. McCormick, 1940, 217 Ind. 493, 510, 29 N.E.2d 405, 130 A.L.R. 1427; Wilson v. State, supra. Johnson v. Zerbst, Warden, 1937, 304 U.S. 458, 464 et seq., 58 S.Ct. 1019, 82 L.Ed. 1461, 1466 et seq. Powell v. State of Alabama, 1932, 287 U.S. 45, 68, 53 S.Ct. 55, 77 L.Ed. 158, 170, 84 A.L.R. 527, 540.

The fundamental right of a defendant in a criminal case to have competent counsel assist him in his defense carries with it as a necessary corollary, the right that such counsel shall have adequate time in which to prepare the defense. Powell v. Alabama, supra, 287 U. S. at page 71, 53 S.Ct. at page 65, head note 10, 77 L.Ed. at page 171, 84 L.R.A. 527. Hoy v. State, supra. Wilson v. State, supra.

As conclusively shown by the motion for continuance, appellant, Bradley's attorneys had from 4:00 o'clock p. m. Friday, March 19, 1948, to 9:30 o'clock a. m., Monday March 22, 1948, a period of 65 1/2 hours, in which is included 3 nights and Sunday, to prepare the defense. This time was wholly insufficient for the attorneys to prepare adequately for the defense in the case and the denial of the motion amounted in substance to a denial of the right to counsel as guaranteed by art. 1, § 13, Indiana Constitution. It also amounted to a denial of due process of law as guaranteed by Amendment 14, § 1, of the Constitution of the United States.

It has often been said by this and other courts that 'the prompt disposal of criminal cases is to be commended and encouraged.' But under our form of government that end can never be accomplished by clipping, modifying or stripping fundamental rights from a defendant. It is always a duty of the trial court and this court to see that those fundamental rights are not improperly denied. Kuhn v. State, 1944, 222 Ind. 179, 193, 52 N.E.2d 491. Todd v. State (1948) Ind.Sup., 81 N.E.2d 784, 787. Hoy v. State, supra.

Since appellants were charged in one affidavit, and were tried together, the motion for continuance made by Bradley, if sustained, would continue the case as to both defendants, and appellant, Taylor, and his attorneys would then have had sufficient time to...