Ingram v. State

• Decision Date: 21 June 1951
• Docket Number: No. 28684,28684
• Citation: 99 N.E.2d 410,230 Ind. 25
• Parties: INGRAM v. STATE.
• Court: Indiana Supreme Court

Page 410

99 N.E.2d 410

230 Ind. 25

INGRAM v. STATE.

No. 28684.

Supreme Court of Indiana.

June 21, 1951.

C. James McLemore, Indianapolis, for appellant.

J. Emmett McManamon, Atty. Gen., Charles F. O'Connor, Deputy Atty. Gen., Merl M. Wall, Deputy Atty. Gen., for appellee.

EMMERT, Judge.

The appellant was prosecuted in the trial court for the offenses of robbery and automobile banditry under an affidavit in two counts. The jury returned a verdict of guilty under both counts, and the appellant was sentenced to a term of not less than 10 nor more than 25 years for robbery, and a term of 12 years for automobile banditry, from which judgment he now appeals.

When the evidence is viewed most favorably to the state, the jury could properly find that the appellant, who was 6 feet, 7 inches tall, had worked for Edward W. Wiegand and Frank Antrobus, who were partners doing business as the Irvington Service Center, located at 5704 East Washington Street, Indianapolis, as a filling station attendant taking care of gasoline, oil and tire service for cars that stopped there, for a period of eight or nine months, but his employment was discontinued for some months prior to the robbery. About five weeks before the robbery, appellant stopped twice in the early morning, at the Irvington Service Center, and had conversations with the witness William H. Hollenbeck, who was then in charge of the filling station, and told him he used to work at the filling station, and to be sure to tell Eddie, meaning Edward W. Wiegand, 'That Big John was in.' About midnight the night of the robbery the witness, Harold K. Dietz, was sitting in his automobile near the northeast corner of Illinois and Market Streets, when appellant and a man whose name was unknown to Dietz, got in his car for a visit. The three went to a drivein east of the city where they ate. Then they drove west on Washington Street and Dietz parked his car on the northeast corner of Audubon and Washington Streets and remained with the car. Appellant and the other man got out and held up the witness Hollenbeck with a revolver, and took $104.00 in money from the cash register which they broke open in the front office. They bound Hollenbeck with some small rubber hose, and started an Oldsmobile in the garage, in which they drove out a door they had opened, and thence east on Washington Street. Two policemen of the City of Indianapolis had noticed Dietz parked in his car, and arrested him. In a glove compartment in the Dietz car the officers found a billfold which contained a taxicab license issued to the appellant which had his picture on it. Both Dietz and Hollenbeck identified the appellant as one of the robbers. The police went to appellant's home at 1200 West New York Street, but failed to find him there. Later the same day he came to police headquarters and stated he understood he was being looked for, and was there arrested. There was ample evidence to sustain the finding of guilty as to each count, and the verdict was not contrary to law.

Appellant complains that the use of the witness Harold K. Dietz by the State, constituted a denial of a fair and impartial trial in violation of the state Constitution and the Fourteenth Amendment of the federal Constitution. No citation of authority is given to sustain this position. It did not conclusively appear from the evidence that Dietz was an accomplice, but assuming that he was, it is well settled that under the third clause of § 9-1603, Burns' 1942 Replacement, an accomplice is competent to testify, and a conviction may be had on the uncorroborated testimony of an accomplice alone. Hermann v. State, 1930, 201 Ind. 601, 170 N.E. 786; Pleak v. State, 1929, 201 Ind. 274, 167 N.E. 524; Adams v. State, 1923, 194 Ind. 512, 141 N.E. 460; Payne v. State, 1924, 194 Ind. 365, 142 N.E. 651; Ewbank, Criminal Law (2d Ed.) § 502. Moreover, Dietz' testimony as to the robbery was corroborated by Hollenbeck.

There was no error in proceeding to trial even though the record fails to show arraignment of the defendant and a plea of not guilty by him. Section 9-1201, Burns' 1942 Replacement, provides in part that, 'Any conviction shall not be invalidated by failure of the record to show an arraignment and plea or either of them, before the trial objected to entering the record shall show that the defendant upon the trial for lack of such arraignment or plea.' No such objection was made here. 'Since the passage of the above amendment, arraignment and plea are not essential unless appellant objects to entering upon the trial without such arraignment and plea.' Rogers v. State, 1937, 211 Ind. 47, 50, 5 N.E.2d 509, 510. Where an accused proceeds to trial without objection, the effect of the statute is to put in the record a plea of not guilty for him.

There is no substance to the appellant's contention that he was denied adequate and effective representation by counsel as guaranteed by § 13 of Article 1 of the Constitution of Indiana and the Fourteenth Amendment of the federal Constitution. On December 29, 1948, appellant by counsel filed a motion for continuance which was granted by the court. On March 24, 1949, appellant filed a motion showing that he had employed other counsel and prayed a continuance which was granted. On June 15, 1949, appellant joined in filing a request for a jury trial, which was granted, and the cause was again continued. On October 28, 1949, appellant came in open court in person and appeared by William Zilson, Public Defender, and stated to the court that he had arranged for representation by counsel other than the Public Defender, and requested the trial, which was set for that date, be again continued,...