Detrich v. State, 26100.

CourtSupreme Court of Indiana
Citation204 Ind. 26,182 N.E. 706
Docket NumberNo. 26100.,26100.
PartiesDETRICH et al. v. STATE.
Decision Date26 October 1932

OPINION TEXT STARTS HERE

Appeal from Vermillion Circuit Court; Wm. C. Wait, Judge.

Walter E. Detrich and James Clark, alias William M. Long, were convicted of bank robbery, and they appeal.

Affirmed.

Roscoe Hollingsworth and Carl W. Lambert, both of Lebanon, for appellants.

James M. Odgen, Atty. Gen., and R. L. Bailey, Sp. Asst. Atty. Gen., for the State.

ROLL, C. J.

Appellants and each of them were charged by affidavit in two counts with the crime of bank robbery. Acts 1927, p. 470, c. 158 (Burns' Ann. St. Supp. 1929, § 2425.1).

The record discloses the following facts: The crime is charged as having been committed on or about December 16, 1930. The affidavit was filed in the Vermillion circuit court on December 22, 1930. On the following day appellants separately, orally moved the court to quash the affidavit and each count thereof, which motions were overruled and exceptions taken. Each appellant was then arraigned in open court and pleaded not guilty, whereupon the cause was assigned for trial January 2, 1931.

On December 27, 1930, appellants filed their verified motion for continuance, and after the court had heard argument of counsel, overruled said motion with exceptions to appellants.

On December 31, 1930, Aikman & Sawyer withdrew as counsel for appellants, and the court then appointed Colonel C. Sawyer, pauper attorney for the county, to defend the defendants as paupers. The defendants then filed their affidavits and motion for a change of venue from the judge on account of bias and prejudice, which was overruled. The affidavit for change of venue was sworn to before Colonel C. Sawyer on December 29, 1930, but was not filed until December 31, 1930.

On January 2, 1931, the defendants asked leave to withdraw their pleas of not guilty which was granted, after which each defendant filed separate motions to quash. Each of said motions were overruled with exceptions, whereupon each defendant entered his plea of not guilty.

The cause was submitted to a jury for trial. Neither appellants nor their attorney made any opening statements, offered no evidence, tendered no instructions, and made no argument. The jury returned a verdict finding each defendant guilty as charged.

Appellants filed motion in arrest of judgment which was overruled. Judgment of life imprisonment was entered on the verdict. Appellants' motion for a new trial was overruled, and appeal was prayed and granted to this court.

[1][2] Appellants assign as error the overruling of their motions to quash, overruling of their motion in arrest, and overruling of their motion for a new trial. Appellants have waived the first two assignments of error by not addressing any points or authorities thereto whatsoever. Partlow v. State (1929) 201 Ind. 207, 214, 166 N. E. 651;Land v. State (1926) 198 Ind. 342, 151 N. E. 823;Woodward v. State (1926) 198 Ind. 70, 152 N. E. 277;Flannigan et al. v. State (1922) 192 Ind. 19, 134 N. E. 885. In appellants' joint and several motion for a new trial appellants assigned nineteen reasons, but reference to their brief discloses that they have made points and cited authorities to only three of the nineteen reasons set out in their motion for a new trial, to wit: (1) Overruling their motion for a continuance; (2) overruling their application for change of venue from the judge; (3) irregularity in the proceedings of the court and abuse of discretion by which they were prevented from having a fair trial, in that the court erred in denying them their constitutional rights to be heard by themselves and counsel. Under the authorities above cited, all other reasons assigned in their motion for a new trial are waived. Appellants urge as their first point that the court should have granted their motion for a continuance. The reasons for a continuance as set forth in their motion in substance are as follows: They recite the record up to the time of filing their motion, and that they have been confined in jail during all the time since their arrest; that they live several hundred miles distant from Vermillion county, and that their relatives upon whom they depend for counsel, help, and assistance also live several hundred miles away; that they have been unable to communicate with them to prepare for their defense; that they are without means to employ counsel, but if given a reasonable time they will be able to communicate with their friends and relatives and secure funds to employ counsel to defend them; that they have tentatively employed the law firm of Aikman & Sawyer of Newport, Ind., as their attorneys but have been unable to pay them any retainer fee; that said attorneys have also been unable to communicate with any of defendants' relatives or to secure any funds to enable said counsel to make necessary arrangements and secure witnesses and prepare for the defense of said action; that if they are not granted a continuance they will be unable to secure funds to employ counsel, and that Aikman & Sawyer will withdraw their appearance; and that they will be compelled to apply to the court to appoint counsel to defend them as poor persons. They also make allegations concerning the excitement in the county, the accusations against them in the newspapers, and the prejudiced feeling against them created by unfavorable publicity; that on account of such condition they would be deprived of a fair trial if forced to trial so soon after the alleged crime.

[3][4][5] Appellants' affidavit and motion for continuance was insufficient under Acts 1905, pp. 584, 631, c. 169, § 218, section 2250, Burns' Ann. St. 1926, if it be considered as asking for a postponement on account of absence of evidence or witnesses. The affidavit does not attempt to set out the evidence, neither does it state that the evidence if obtained would be material. The name or names of the witnesses and place of residence are not attempted to be set out in appellants' motion. Smith v. State (1892) 132 Ind. 145, 31 N. E. 807;Beavers v. State (1877) 58 Ind. 530. It is apparent from a careful reading of appellants' motion that they were not asking for a continuance on the ground of absent witnesses or to bring themselves within the provisions of the above-named section of our statute. As we view appellants' motion for a continuance, it was based upon the proposition that they did not have funds with which to employ the firm of Aikman & Sawyer (the lawyers whom they desired to defend them), and that if the case was postponed they would be able to communicate with relatives and friends who would furnish the money with which to pay their lawyers. The facts set out in the motion show that Aikman & Sawyer had entered their appearance for the appellants and appeared in open court and argued the motion for a continuance on their behalf. There is nothing in the record and no showing made by appellants that Aikman & Sawyer failed or refused to do anything in the interest of the appellants they thought advisable up to the time they withdrew their appearance, to wit, on December 31, 1930. As soon as Aikman & Sawyer withdrew their appearance the court appointed Colonel C. Sawyer to defend them. There was no change in the relationship between appellants and the attorney of their own selection. The only change was the source of payment of Mr. Sawyer. If the continuance had been granted and appellants had been able to do what they stated in their motion for a postponement that they had good reasons to believe they could do, to wit, to secure funds with which to employ counsel, or suppose they had had funds of their own with which to employ counsel, the result in any event would have been the continued employment of Colonel C. Sawyer as the attorney for appellants. The same result was accomplished by the tentative employment of Mr. Sawyer by appellants till December 31, 1930, and his continued service under appointment by the court to defend appellants as poor persons. The sum and substance of it all is that appellants had the benefit of counsel of their own selection from the...

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