Ford v. State, 28709

• Decision Date: 15 May 1951
• Docket Number: No. 28709,28709
• Parties: FORD v. STATE.
• Court: Indiana Supreme Court

Page 655

98 N.E.2d 655

229 Ind. 516

FORD v. STATE.

No. 28709.

Supreme Court of Indiana.

May 15, 1951.

T. Ernest Maholm, Indianapolis, for appellant.

J. Emmett McManamon, Atty. Gen., Charles F. O'Connor, Deputy Atty. Gen., George W. Hand, Deputy Atty. Gen., for appellee.

JASPER, Judge.

Appellant was charged by an affidavit in two counts, with robbery under § 10-4101, Burns' 1942 Replacement, and with grand larceny under § 10-3001, Burns' 1942 Replacement. A plea of not guilty was entered, a trial by jury was waived, and the trial court found appellant guilty of robbery. Judgment and sentence followed.

Appellant presents only two questions for our consideration: (1) That the trial court had no jurisdiction of appellant, and (2) that by his trial and conviction appellant has been placed in former jeopardy. We shall answer these contentions in the order as above set out.

The affidavit in two counts was filed on May 16, 1949, at which time appellant was serving a sentence at the Indiana State Farm. A warrant for appellant's arrest was issued to the sheriff, and an order was entered, which, in substance, ordered the return of appellant from the Indiana State Farm. Appellant was returned to Marion County for trial.

Appellant contends that, since the order of the court did not order the sheriff to obtain approval of the Governor for the return of appellant, the court therefore did not have jurisdiction over appellant. Section 9-1019, Burns' 1942 Replacement, provides as follows: 'The sheriff, as soon as he receives the warrant, shall cause the same to be presented to the governor, who, if satisfied that such convict ought to be removed for sentence or trial, shall indorse his approval thereon, and without such approval and indorsement, the warden or superintendent shall not surrender the convict.'

The Legislature places the duty upon the sheriff to obtain the approval of the Governor, and it is not incumbent upon the court to do so. The warrant is not in evidence, nor is there any evidence in the record regarding the question of jurisdiction of appellant, nor was any question raised until the attorney for appellant filed a motion in arrest after trial. The record discloses that the trial court had jurisdiction of the subject-matter, and that appellant was arraigned, tried, found guilty, and sentenced. In the absence of a showing to the contrary, this court must presume that the proceedings in the trial court were proper. Witt v. State 1933, 205 Ind. 499, 185 N.E. 645; Hamilton v. State 1934, 207 Ind. 97, 190 N.E. 870; Slaughter v. State, 1936, 209 Ind. 658, 660, 199 N.E. 244; Bledsoe v. State, 1945, 223 Ind. 675, 690, 64 N.E.2d 160.

The contention of appellant was raised only by a motion in arrest of judgment. Under § 9-2001, Burns' 1942 Replacement, a motion in arrest of judgment will reach two defects: (1) That the grand jury which found the indictment had no legal authority to inquire into the offense charged, for the reason that such offense was not within the jurisdiction of the court; and (2) that the facts stated in the indictment or affidavit do not constitute a public offense. This court has held that a motion in arrest of judgment can only be granted for defects apparent in the record. All of the material facts, as contended by appellant and set out in the motion in arrest of judgment, are de hors the record; and an objection which must be established by extrinsic proof is not a good ground for a motion in arrest of judgment. Loftus v. State, 1945, 223 Ind. 647, 651, 63 N.E.2d 290. The court had both jurisdiction of the subject matter and of the person of appellant. The contention of appellant is without merit.

Appellant further contends that he has been placed in double jeopardy. On June 20, 1949, he filed a motion to dismiss for former jeopardy. The motion was overruled by the trial court. The record discloses that appellant signed an extrajudicial confession, admitting three distinct and separate robberies; that he was charged by affidavit with one of the confessed robberies, and plead guilty to petit...