Brown v. State, 27554.
| Docket Nº | No. 27554. |
| Citation | 219 Ind. 251, 37 N.E.2d 73 |
| Case Date | November 03, 1941 |
| Court | Supreme Court of Indiana |
BROWN
v.
STATE.
No. 27554.
Supreme Court of Indiana.
Nov. 3, 1941.
Luther Brown was convicted for first degree rape, and he appeals.
Affirmed.
[37 N.E.2d 75]
Appeal from Circuit Court, Wayne County; Gustave H. Hoelscher, judge.
Oscar B. Thiel, of Gary, for appellant.
George N. Beamer, Atty. Gen., Walter O. Lewis, Deputy Atty. Gen., and David Dennis, Pros. Atty., of Richmond, for appellee.
SWAIM, Judge.
The appellant (defendant below) is appealing from a judgment of the Wayne Circuit Court, which judgment recited that ‘The Court finds that said defendant is guilty of the crime charged, namely: First Degree Rape * * *.’ The record shows that in the Wayne Circuit Court, at the April Term, 1940, an affidavit was filed against the appellant, charging him in the language of the statute with first degree rape at and in the County of Wayne, in the State of Indiana; that thereafter the prosecuting attorney filed a petition seeking the permission of the court to file an amended affidavit, which, instead of merely charging first degree rape in the language of the statute, would charge the crime of rape in the first degree by setting forth in said affidavit that the appellant ‘unlawfully and feloniously made an assault and battery with intent to commit rape in the first degree in the County of Wayne and State of Indiana * * * and * * * unlawfully and feloniously and by force and violence and putting in fear take captive, restrain and detain the said affiant in said County of Wayne and State of Indiana, with the intent aforesaid, and did then and there unlawfully and feloniously carry off, kidnap and transport said affiant from said County of Wayne and State of Indiana, to the County of Union, State of Indiana, with the intent aforesaid; and did then and there in said County of Union and State of Indiana, unlawfully, feloniously and forcibly make an assault in and upon said affiant, a woman then and there being, and did then and there in said County of Union and State of Indiana, unlawfully, feloniously and forcibly and against said affiant's will ravish and carnally know her the said affiant.’ This petition was granted and such an amended affidavit was filed.
The appellant is prosecuting this appeal on an assignment of errors which alleges (1) that the Wayne Circuit Court had no jurisdiction of the offense of rape in the first degree committed in Union County, of which offense the appellant was convicted, (2) that the Wayne Circuit Court had no jurisdiction of the offense of first degree rape alleged in the amended affidavit, which offense is alleged to have been committed in Union County, and (3) that the Wayne Circuit Court had no jurisdiction of the crime for which the appellant was convicted.
In the Wayne Circuit Court the appellant was represented by counsel. He filed no motion to quash the amended affidavit, but entered a plea of not guilty. He submitted to trial in the Wayne Circuit Court without objection. He, at no time, made an application to have the papers and proceedings certified and transmitted to the Circuit
[37 N.E.2d 76]
Court of Union County. He filed no motion in arrest of judgment. He did not advise the court of any reason why judgment should not be pronounced and he filed no motion for a new trial.
The evidence is not before us. The record material to the question which the appellant attempts to raise includes the prosecutor's petition to file an amended affidavit, the order granting the prosecutor's petition, the amended affidavit, the plea of not guilty, a statement that the trial was had and that the case was taken under advisement, and the finding and judgment of the court.
The appellant insists that this record sufficiently shows reversible error in that the amended affidavit charged the separate and independent offense of rape as having been committed in Union County and said amended affidavit was filed and a trial and conviction had thereon in Wayne County, contrary to Section 13, Article 1 of the Constitution of the State of Indiana, which 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; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor’, and also contrary to § 9-201, Burns' 1933, § 2010, Baldwin's...
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