Detrick v. State

• Decision Date: 26 October 1932
• Docket Number: 26,100
• Citation: 182 N.E. 706,204 Ind. 26
• Parties: Detrick v. State of Indiana
• Court: Indiana Supreme Court

182 N.E. 706

204 Ind. 26

Detrick v. State of Indiana

No. 26,100

Supreme Court of Indiana

October 26, 1932

1. APPEALS---Assignments of Error---Failure to Present Points and Authorities.---An assignment of error is waived if appellant fails to address points or authorities thereto. p 28.

2. APPEALS---Assignments of Error---Motion for New Trial---Failure to Present Points.---Where overruling the motion for new trial is assigned as error, causes set out in the motion to which no points or authorities are addressed in the brief are deemed waived. p. 28.

3. CRIMINAL LAW---Trial---Motion for Continuance---Discretion of Trial Court---Review.---A motion for continuance in a criminal case is addressed to the sound discretion of the trial court, and, where exercised, it cannot be reviewed unless the complaining party shall show clearly and strongly that the court grossly perverted its power to his manifest injury. p. 31.

4. JUDGES---Change of Judge---Right Statutory.---The right, or privilege, to a change of judge in a criminal case is statutory, and, therefore, the Legislature may withhold such a privilege entirely, or may grant it upon such conditions as it may see just and proper. p. 32.

5. JUDGES---Change of Judge---Time for Request.---The Legislature having the power to extend to an accused the privilege of a change of venue from the judge on account of bias and prejudice, it also has the power to specify the method and time within which that privilege is to be exercised, and it is not reversible error to deny a change where the applicant has not brought his request therefor with such statutory provisions. (2235 Burns 1929 Supp.) p. 32.

From Vermillion Circuit Court; William C. Wait, Judge.

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

Affirmed.

Roscoe Hollingsworth and Carl W. Lambert, for appellants.

James M. Ogden, Attorney-General, and Robert L. Bailey, Special Attorney-General, for the State.

OPINION

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, ch. 158.

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 plead 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 and 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 affidavits for change of venue were sworn to before Colonel C. Sawyer on December 29, 1930, but were 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.

Appellants, nor their attorney, made no 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.

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 (1921), 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 and Sawyer, of Newport, Indiana, 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 and 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.

Appellants' affidavit and motion for continuance was insufficient under Acts 1905, p. 584, § 2250 Burns Revised Statutes 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 nor 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 and Sawyer (the lawyers whom they desired to defend them) and that if the case were 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 and 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 and 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 and 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...