Irvin v. State, No. 29407

Docket NºNo. 29407
Citation236 Ind. 384, 139 N.E.2d 898
Case DateFebruary 05, 1957

Page 898

139 N.E.2d 898
236 Ind. 384
Leslie IRVIN, Appellant,
v.
STATE of Indiana, Appellee.
No. 29407.
Supreme Court of Indiana.
Feb. 5, 1957.

[236 Ind. 385] James D. Lopp, Theodore Lockyear, Jr., Evansville, for appellant.

[236 Ind. 386] Edwin K. Steers, Atty. Gen., Richard M. Givan and Owen S. Boling, Deputy Attys. Gen., for appellee.

ARTERBURN, Judge.

This is an appeal by Leslie Irvin, appellant herein, from a judgment convicting him of murder in the first degree. The prosecution is the result of a grand jury indictment returned in the Vanderburgh Circuit Court on the 21st day of April, 1955. After a change of venue to the Gibson Circuit Court, trial was commenced on the 10th day of December, 1955, and on the 20th day of December, 1955, the jury returned its verdict against the appellant, finding him guilty. On the 9th day of January, 1956 judgment was entered on the verdict and appellant was sentenced to pay the death penalty. The assigned error here is based solely upon the overruling of appellant's motion for a new trial.

The record in this case shows that on the night of January 18, 1956 the appellant escaped from the Gibson County jail, and that on the next day the attorneys for the appellant filed in open court a motion for a new trial. The material part of the court's entry is as follows:

'And now said attorneys file in open court the motion for a new trial. And now there is further showing to the court by Earl Hollen, the Sheriff of Gibson County, Indiana,

Page 899

that the defendant, Leslie Irvin, escaped from the Gibson County jail last night and that his whereabouts are unknown.'

The record further discloses that the appellant was still at large on January 23, 1956 when the court made the following record:

'* * * And now the court having had under advisement the motion for a new trial and being sufficiently advised in the premises, now overrules [236 Ind. 387] the defendant's motion for a new trial, to which ruling of the court the defendant's attorneys except. And the court being advised by the Sheriff of Gibson County, Indiana, that the defendant, Leslie Irvin, escaped from the Gibson County Jail on the night of January 18, 1956 and is still at large, a fugitive from justice and his whereabouts are unknown.

'And now the attorneys for the defendant file with the court a copy of a letter received from the defendant, which letter is in words and figures following, to-wit:

'Wednesday

'January 18, 1956

'Dear Ted:

'I know this is the wrong thing to do, but I can't just go up to Michigan City and wait. If, they ever do give me a new trial, I'll come back and face it. Maybe the jury then will believe the truth.

'I appreciate it if you go on with the appeal. That was why I asked you the last time I saw you, if I had to be here when you filed for a new trial.

'I know that you and Jim are doing everything you can for me. It's a hard fight. But all three of us knows that the police lied, and I was convicted before I was even tried. I haven't given up hope, but it sure is hard.

'As I said above, if any when I get a new trial, I'll try again. Thanks for everything you have done for me.

'Yours very truly,

'Les'

'It is, therefore, ordered, adjudged and decreed by the court that the motion for new trial is overruled, to which ruling the defendant's attorneys except.'

The state contends that the appellant having escaped, and placed himself beyond the jurisdiction and control of the court, forfeited his right to ask the court for a new trial, since he thereby was asking for certain [236 Ind. 388] benefits and rights under the law, and at the same time, was placing himself beyond the jurisdiction of the court, and flouting its authority as a fugitive from justice. The question arises as to whether or not the attorneys' authority to represent a client, who has abandoned them and the court in which they represent him, is automatically terminated. May such a defendant ask for relief in court by way of a motion for a new trial, and still refuse to respond to any adverse order or rulings of the court?

In People v. Redinger, 1880, 55 Cal. 290, 36 Am.Rep. 32, the defendant was convicted of murder, and sentenced to death by hanging and then escaped. The attorney general objected to any one being heard for the defendant on appeal, on the ground that the court ought not to recognize anyone as counsel for the defendant after he had escaped, and thereby voluntarily withdrawn himself from the jurisdiction of the court; however, a brief was allowed to be filed on behalf of the defendant-appellant. The court reviewed many cases, and stated that the whole theory of criminal proceedings is based on the idea of the defendant-appellant being in the power and under the control of the court at all times. The constitution

Page 900

and statute provides him with counsel and gives him certain rights and privileges. He cannot accept these benefits, and flout the law and jurisdiction of the court. The court finally stated, 55 Cal. on page 298:

'For the reasons here given, sustained by cases cited, we think the defendant has no longer a right to appear by counsel, when he has escaped from custody, until he has returned into custody. By breaking jail and escaping, he had waived the right to have counsel appear for him. (Commonwealth v. Andrews, 97 Mass. ut. supra). In fact, his right to constitute counsel and invest him with authority no longer exists while his absence from custody continues.' (Our italics.)

[236 Ind. 389] In People of the State of New York v. Genet, 1874, 59 N.Y. 80, 17 Am.Rep. 315, the court held the defendant, who has escaped, will not be permitted to take any action, or to be heard in a criminal proceeding so long as he remains at large. This ruling was not based on any statutory provision but was held to be a general rule of criminal jurisprudence.

Some courts have held that a defendant may not ask a favorable ruling from a court, and place the court...

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27 practice notes
  • Fay v. Noia, No. 84
    • United States
    • United States Supreme Court
    • March 18, 1963
    ...U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900, is not inconsistent. Our holding there was that since the Indiana Supreme Court, Irvin v. State, 236 Ind. 384, 139 N.E.2d 898, had reached the merits of Irvin's federal claim, the District Court, 153 F.Supp. 531, was not barred by § 2254 from determini......
  • United States v. Smith, Civ. No. 3275.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • January 12, 1962
    ...separate ground upon which the petitioner seeks a new trial, but the cumulative effect of them considered together." 310 Irvin v. State, 236 Ind. 384, 392-393, 394, 139 N.E.2d 898, 902 (1957), cert. denied, 353 U.S. 948, 77 S.Ct. 827, 1 L. Ed.2d 857 311 Irvin v. Dowd, supra note 306, at 404......
  • Irvin v. Dowd, No. 63
    • United States
    • United States Supreme Court
    • May 4, 1959
    ...me.' The opinions of the Indiana Supreme Court and the District Court held the constitutional claim to be without merit. Irvin v. State, 236 Ind. 384, 392—394, 139 N.E.2d 898, 901—902; Irvin v. Dowd, D.C., 153 F.Supp. 531, 535—539. On the other hand, Chief Judge Duffy of the Court of Appeal......
  • Irvin v. Dowd, No. 41
    • United States
    • United States Supreme Court
    • June 5, 1961
    ...and sentence of death in the Circuit Court of Gibson County, Indiana. The Indiana Supreme Court affirmed the conviction in Irvin v. State, 236 Ind. 384, 139 N.E.2d 898, and we denied direct review by certiorari 'without prejudice to filing for federal habeas corpus after exhausting state re......
  • Request a trial to view additional results
27 cases
  • Fay v. Noia, No. 84
    • United States
    • United States Supreme Court
    • March 18, 1963
    ...U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900, is not inconsistent. Our holding there was that since the Indiana Supreme Court, Irvin v. State, 236 Ind. 384, 139 N.E.2d 898, had reached the merits of Irvin's federal claim, the District Court, 153 F.Supp. 531, was not barred by § 2254 from determini......
  • United States v. Smith, Civ. No. 3275.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • January 12, 1962
    ...separate ground upon which the petitioner seeks a new trial, but the cumulative effect of them considered together." 310 Irvin v. State, 236 Ind. 384, 392-393, 394, 139 N.E.2d 898, 902 (1957), cert. denied, 353 U.S. 948, 77 S.Ct. 827, 1 L. Ed.2d 857 311 Irvin v. Dowd, supra note 306, at 404......
  • Irvin v. Dowd, No. 63
    • United States
    • United States Supreme Court
    • May 4, 1959
    ...me.' The opinions of the Indiana Supreme Court and the District Court held the constitutional claim to be without merit. Irvin v. State, 236 Ind. 384, 392—394, 139 N.E.2d 898, 901—902; Irvin v. Dowd, D.C., 153 F.Supp. 531, 535—539. On the other hand, Chief Judge Duffy of the Court of Appeal......
  • Irvin v. Dowd, No. 41
    • United States
    • United States Supreme Court
    • June 5, 1961
    ...and sentence of death in the Circuit Court of Gibson County, Indiana. The Indiana Supreme Court affirmed the conviction in Irvin v. State, 236 Ind. 384, 139 N.E.2d 898, and we denied direct review by certiorari 'without prejudice to filing for federal habeas corpus after exhausting state re......
  • Request a trial to view additional results

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