Calvert v. State, 31008

• Citation: 15 Ind.Dec. 227,239 N.E.2d 697,251 Ind. 119
• Decision Date: 26 August 1968
• Docket Number: No. 31008,31008
• Parties: Franklin D. CALVERT, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 697

239 N.E.2d 697

251 Ind. 119

Franklin D. CALVERT, Appellant, v. STATE of Indiana, Appellee.

No. 31008.

Supreme Court of Indiana.

Aug. 26, 1968.

Richard M. Orr, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Duejean C. Garrett, Deputy Atty. Gen., Indianapolis, for appellee.

PER CURIAM.

This is an appeal from the Scott Circuit Court in which appellant was tried by jury and found guilty of second degree burglary upon which sentence was entered sentencing appellant to not less than two (2) nor more than five (5) years in the Indiana State Reformatory.

Appellant urges as grounds for reversal the failure of the trial court to comply with the Indiana Supreme Court's writ of certiorari dated January 30, 1967 and the failure to make any return thereto; the trial court erred in overruling a motion for continuance; the court erred and abused its discretion in the manner of selecting additional jurors when the panel was exhausted, and finally, that the verdict of guilty is not sustained by sufficient evidence.

As for the return to the order for writ of certiorari, the particulars ordered, made and certified by the clerk of the Scott Circuit Court were:

'1. There has been omitted therefrom 'all motions, rulings and orders concerning any delay in this trial' as referred to at page 29, lines 24, 25 and 26, of the transcript.

'2. A Bill of Exceptions containing the complete Voir Dire examination.

'3. Any and all orders calling supplemental jurors, which orders are referred to at page 29, line 19, of the Transcript.

'4. Motions and objections to the manner of calling the supplemental jurors, particularly objections and overruling of counsel's requests for continuance and recess.

'5. Tendered motion to include omitted matter in Transcript of appeal.

'6. Tendered supplemental motion to include omitted matter in Transcript of appeal.'

On May 13, 1968, the clerk of the Scott Circuit Court filed a proper letter of return to the above mentioned order stating that his files contain no record of voir dire examination since none was requested; that there is no record of any motions or objections, written or oral; and that all records available to his office have been transcribed.

It has been held by this court that it is the duty of the appellant or his attorney to bring a proper transcript to the court and see that it is presented in the proper manner and form so as to raise contentions of error. McIntyre v. State (1933), 205 Ind. 653, 187 N.E. 835; Messersmith v. State (1940), 217 Ind. 132, 26 N.E.2d 908.

The purpose of a writ of certiorari is to correct the transcript where the record below is correct but has not been correctly copied in the transcript. The return of the clerk of the Scott Circuit Court indicates that the transcript filed with this court correctly reflects the record below.

If the record below is incorrect, it cannot be corrected by a writ of certiorari, but must first be corrected in the trial court and the corrections then brought up by certiorari. Smith v. State (1926), 198 Ind. 484, 154 N.E. 3. The transcript indicates that neither the appellant or his attorney made any request for recording of the voir dire examination, nor attempted to procure a special bill of exceptions concerning the jury's selection.

A bill of exceptions is likewise ordinarily the proper manner of preserving matters occurring during the trial, in the presence of the trial judge, and claimed to be the result of indiscretions or misconduct on his part. Todd v. State (1948), 226 Ind. 496, 81 N.E.2d 530, 82 N.E.2d 407.

The case of McDonald v. State (1954), 233 Ind. 441, 118 N.E.2d 891, properly states that before an appellant is entitled to a new trial the burden is on him to establish that he could not obtain an adequate bill of exceptions.

The record shows that attorney Britton Franklin of Louisville, Kentucky appeared on behalf of appellant on April 19, 1965 to assist in appellant's arraignment. Thereafter, on June 10, 1965, appellant, by the same attorney, requested a continuance of the cause. The motion was granted and the cause was continued generally. On September 13, 1965 appellant requested a jury trial, and the cause was set for trial October 7, 1965.

On the morning of the trial, another attorney, Leland West, entered a joint appearance for appellant, conditioned upon the granting of a continuance. In the motion for continuance, Mr. West stated that he had that day been retained to appear in the cause and that additional time would be required in which to consult with appellant.

There was no withdrawal of appearance by attorney Britton Franklin, who, in fact, appeared for the appellant and represented the appellant during the trial of his case. The record indicates that appellant was given six months in which to prepare his defense, and that he enjoyed the services of an attorney during that entire period.

It is well settled that a defendant in a criminal case cannot claim a continuance without showing proper cause therefor. This court has stated that continuances are not favored and will therefore only be granted in the furtherance of justice on the showing of proper grounds. If a continuance is based on other than statutory grounds, the motion is directed to the court's discretion. Ward v. State (1965), 246 Ind. 374, 205 N.E.2d 148; Jay v. State (1965), 246 Ind. 534, 206 N.E.2d 128, 207 N.E.2d 501.

Appellant admits that his motion for continuance was based on other than statutory grounds, but states that the court abused its discretion in refusing to permit his 'local counsel' sufficient time to prepare. A criminal defendant is entitled to a reasonable time to prepare for trial and have the aid of counsel. Appellant was provided with both.

Appellant contends that the trial court ordered that a 'supplemental jury panel' be selected by the sheriff pursuant to Burns' § 2--2004, and appellant further alleges that this order was entered without notice to him and without his knowledge, and that he was prejudicially surprised thereby. None of appellant's contentions are substantiated by the order book entries set forth in the transcript. The entry for the first day of voir dire, October 7, 1965, reads:

'The counsel, Eugene Hough, Prosecuting Attorney, and Britton Franklin announce ready for trial, and the jury box is now filled and oath given to the prospective jurors. The voir dire continues until approximately 2:00 P.M., this date and the jury list of petit jurors being exhausted and the jury box No. 8 being vacant the Court now orders the Clerk to immediately proceed under Statute 2--2004 to select 20 new prospective jurors and to have them available Friday, October 8, 1965, at 9:00 A.M. The Court finds that this method of selecting prospective jurors is proper under Statute 2--2004, Burns' Indiana Statute and now overrules and sets aside any and all motions, rulings and orders concerning any delay in this trial.'

This entry indicates that both appellant and his attorney were present when the court ordered the clerk, not the sheriff as alleged by appellant, to proceed under Burns' § 2--2004 to select twenty prospective jurors to assist and have them available the next day at 9:00 A.M.

First, this transcript, as certified by the clerk, imports absolute verity and cannot be contradicted by statements of the parties or of their counsel, verified or unverified. Kain v. State (1955), 234 Ind. 160, 123 N.E.2d 177, 125 N.E.2d 436. Since, therefore, the transcript recites that appellant was present in the courtroom, he cannot successfully contend he was not. Blanton v. State (1954), 233 Ind. 51, ...