Grier v. State

• Decision Date: 30 September 1968
• Docket Number: No. 1067S110,1067S110
• Parties: George Samuel GRIER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 494

240 N.E.2d 494

251 Ind. 214

George Samuel GRIER, Appellant, v. STATE of Indiana, Appellee.

No. 1067S110.

Supreme Court of Indiana.

Sept. 30, 1968.

William C. Erbecker, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Dennis J. Dewey, Deputy Atty. Gen., for appellee.

PER CURIAM:

The Appellant, along with one Donald Prather, was charged by affidavit with the crime of First Degree Burglary. Trial was by court and Appellant was found guilty and sentenced to the Indiana State Reformatory for a period of not less than ten (10) nor more than twenty (20) years.

The Appellant was represented at trial by counsel and following his conviction, his counsel filed a Motion for New Trial, which motion reads in part as follows:

'Comes now the defendant in the above entitled cause and moves the court for a new trial thereof upon the following grounds and for the following reasons:

1. That the finding of the court is contrary to law.

2. That the finding of the court is not sustained by sufficient evidence.'

The Appellant thereafter perfected an appeal to this Court and assigned as error the overruling of the above Motion for New Trial.

This appeal is based on two propositions, namely: (1) that the Appellant was denied due process of law in that there is no evidence that he intelligently waived his right to trial by jury, and (2) that the finding of the trial court was not established by sufficient evidence.

The Appellant admits that the first alleged error, denial of due process of law by his waiver of right to trial by jury, was not included in his Motion for New Trial. He further acknowledges Rule 2--6 of this Court, which provides in part as follows:

'In all cases in which a motion for a new trial is the appropriate procedure preliminary to an appeal, such motion shall be filed and shall separately specify as grounds therefor each error relied upon however, and whenever arising up to the time of filing of such motion, and an assignment of error on appeal to the effect that the trial court erred in overruling said motion shall be the only means of raising said asserted errors on appeal.'

The Appellant argues, however, that this Court will, as it did in Ford v. State (1967) Ind., 229 N.E.2d 634, overlook procedural rules when they serve to preclude the consideration of errors which have substantially prejudiced the constitutional rights of the defendant.

In Ford v. State, supra, relied upon by the Appellant, the facts revealed that the Appellant made a request for a jury trial and was told by the court in effect that he could expect a more severe sentence if convicted by a jury. As this Court found, the facts clearly indicated that the Appellant did not intelligently waive his right to a jury trial.

It can be said therefore that this Court does recognize that certain errors can be presented on appeal and not specified in the motion for new trial, which errors so substantially prejudice the defendant's rights that the procedural requirement of Rule 2--6 'must give way to the fundamental principles of due process'. Wilson v. State, (1943) 222 Ind. 63, 51 N.E.2d 848.

The instant case presents no proper basis for the application of this limited exception to Rule 2--6 and therefore, the alleged error is not before this Court. This finding obviously necessitates an examination of the alleged error, which examination is made to determine whether or not the record reveals error so prejudicial to the rights of the Appellant that he could not have had a fair trial. The allegations of error concern the following portion of the record:

'THE COURT: 67--272, Grier and Prather charge of First Degree Burglary. Sit over there with your lawyers. Do they want a jury trial maybe?

MR. SMITH (for Appellant): He doesn't want any.

THE COURT: All the people interested in this case come forward, please, Prather and Grier. Everybody interested in this case, please come forward. Does your client (Appellant) want a jury, Mr. Smith?

MR. SMITH: No, he doesn't want any. Sign a jury waiver.'

In Ford v. State, supra, at page 638 of 229 N.E.2d this Court stated the purposes and rationale of Rule 2--6:

'To preserve order and stability in appellate practice, procedural rules ordinarily must be observed by litigants and may not be ignored by reviewing courts. The primary reason for requiring parties to present all possible grounds for appeal in the motion for new trial is to avoid the necessity of an appeal by giving the trial judge a chance...