Capps v. State

• Decision Date: 19 October 1961
• Docket Number: No. 30058,30058
• Citation: 242 Ind. 165,177 N.E.2d 457
• Parties: Billy Raye CAPPS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 457

177 N.E.2d 457

242 Ind. 165

Billy Raye CAPPS, Appellant, v. STATE of Indiana, Appellee.

No. 30058.

Supreme Court of Indiana.

Oct. 19, 1961.

Owen S. Bowling, Franklin, Ira C. Tilton, Valparaiso, for appellant.

Edwin K. Steers, Atty. Gen., Patrick D. Sullivan, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

The appellant was tried and convicted of the crime of robbery and given an indeterminate sentence of not less that ten years nor more than twenty-five years and was disfranchised for a period of five years. From this judgment he appeals and assigns as error: first, the overruling of appellant's motion for a new trial, and the remaining assignments claim error as a result of the case being tried jointly with another cause--State of Indiana v. Clarence Scarberry, Jr., being Cause No. 2401 in the trial court.

A motion to dismiss or affirm has been filed by the State on the ground that the motion for a new trial was filed too late and that the remaining specifications in the assignment of errors were improper under Rule 2-6, as amended June 28, 1960, effective September 1, 1960, since such specifications can only be included in the motion for a new trial. The further objection is that regardless of the violation of Rule 2-6, as amended, no objections were made to the remaining specifications which claimed error by reason of the trial being held jointly with the trial of another criminal case in the same court, No. 2401.

Upon examination of the record we find a recital as follows:

'State of Indiana

Vs

Billy Raye Capps

No 2400

'Comes now the defendant, in person and by counsel, Harry A. Psimos, and withdraws demand for jury trial, and waives trial by jury. On motion of the defendant, which the court now grants, this cause is now ordered tried with Cause No. 2401.'

This record stands unimpeached. It shows no objections and in fact, shows a motion by the appellant for the consolidation of the trials. Although the appellant now urges that he did not make the motion for a consolidation, be that as it may, he does not deny that he made no objection thereto.

It is further argued that appellant was not advised of his constitutional rights and that he was entitled to 'sole' counsel. Constitutional rights may be waived, and may be waived by the defendant in the presence of counsel. The appellant appears to have raised the questions urged for the first time on appeal in this court. Such questions could very well have been presented and raised in the trial court at the time the claimed errors occurred. Prough v. State, 1957, 236 Ind. 655, 142 N.E.2d 603; Pivak v. State, 1931, 202 Ind. 417, 175 N.E. 278, 74 A.L.R. 406; Flowers v. State, 1956, 236 Ind. 151, 139 N.E.2d 185.

We come next to the question of the lateness of the filing of the motion for a new trial. Burns' § 9-1903, 1956 Repl. requires specifically that a new trial 'shall be in writing and must be filed within thirty days from the date of the verdict or finding; * * *.'

The record shows the court found the appellant guilty on March 18, 1959. That finding, however, omitted any statement by the court therein as to the age of the appellant in accordance with Burns' § 9-1820, 1956 Repl., which provides as follows:

'In all cases of felony tried hereafter, before any court or jury in this state, if the court or jury find the person on trial guilty of a felony, it shall be the duty of such court or jury to further find and state whether or not the defendant is over sixteen years of age and less than thirty years of age. If such defendant be found to be between said ages and be not guilty of treason or murder in the first or second degree, it shall only be stated in the finding of the court or the verdict of the jury that the defendant is guilty of the crime charged, naming it, and that his age is that found to be his true age, and the court trying such person, if such person has passed the full age of twenty-one but has not passed the full age of thirty years, and has not been theretofore convicted of a felony, the court shall sentence such person to the custody of the board of trustees of the Indiana Reformatory, etc. * * *.'

On March 25, 1959 the court made the further finding fixing the age of the appellant as follows:

'The Court * * * now finds that the true age of the defendant is 24 years and the Court further finds that the defendant should be sentenced to the Custody and control of the Superintendent of the Indiana Reformatory, to be confined at the Indiana Reformatory for an indeterminate period of not less than (10) years nor more than twenty-five (25) years and, accordingly, defendant should be confined therein for such indeterminate period * * *. The court further finds that the defendant shall be disfranchised and rendered incapable of holding any office of public trust or profit for five (5) years.'

The appellant filed his motion for a new trial on April 24, which was thirty-seven days after the original finding of guilty, but less than thirty days after the subsequent court record finding of age and sentencing. The question then presented is: which was the 'finding' referred to in the statute fxing a thirty-day limit within which a motion for a new trial must be filed?

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