Joseph v. State

• Decision Date: 18 March 1957
• Docket Number: No. 29231,29231
• Parties: , 69 A.L.R.2d 824 Donald JOSEPH, Paul Plerce, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 109

141 N.E.2d 109

236 Ind. 529, 69 A.L.R.2d 824

Donald JOSEPH, Paul Plerce, Appellants, v. STATE of Indiana, Appellee.

No. 29231.

Supreme Court of Indiana.

March 18, 1957.

Rehearing Denied April 30, 1957.

Waldo C. Ging, Stephen A. Free, Greefield, William S. Isham, Fowler, of counsel, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Robert S. Baker, Deputy Attys. Gen., for appellee.

BOBBITT, Judge.

Appellants were indicted for murder in the first degree in the year 1935, tried by jury on change of venue to Hancock County in February, 1936, found guilty as charged and sentenced to the Indiana State Prison for life. On June 29, 1953, the Hancock Circuit Court sustained appellants' belated motion for a new trial. Thereafter, in November of 1953, they were retried on the original indictment and the jury failed to agree. In January, 1954, appellants were tried for the third time, and on this trial the jury found them guilty of murder in the second degree. This appeal arises out of the third trial.

Errors are assigned as follows:

'1. That the Court erred in denying defendants' separate and several motion for the personal presence and appearance in the Hancock County Circuit Court of defendants during the hearing and argument of the motion for new trial herein and in refusing to issue the necessary order therefor timely requested by defendants, in contravention of Article I, Section 13, Indiana Constitution, and the Fourteenth Amendment of the United States Constitution.

'2. That the Court erred in overruling the motion for new trial.'

First: We will first consider appellants' assertion that because they were prevented by the rules of the Indiana State Prison from filing a timely motion for a new trial and from prosecuting an appeal, at that time, from the original judgment, they were denied their constitutional right to due process and, therefore, must now be discharged.

We do not concur with appellants that unless they are permitted a review of the judgment which they sought to have reviewed in 1936, when their papers were allegedly suppressed by the prison authorities, that they must now be discharged.

On February 14, 1953, appellants, upon petition previously filed, were granted the right to file a belated motion for a new trial; and on March 12, 1953, a motion for a new trial was filed. Such motion was sustained and a new trial granted on June 29, 1953.

A timely review and reversal of the original judgment of commitment would have resulted in a new trial for appellants, hence, the same legal result was reached by the granting of their petition for a new trial on June 29, 1953.

If, on the hearing on the belated motion for a new trial, the court had overruled such motion instead of granting it, appellants' appeal would then have been from the original judgment. Carrying this reasoning to its next logical step, if, on such an appeal, this court would have reversed the judgment and granted a new trial, appellants would then have been in the identical situation in which they found themselves when the Hancock Circuit Court granted them a new trial on their belated motion therefor.

The mere fact that they were not retried for seventeen years from the date of the original judgment does not entitle them to a discharge. When the judgment upon which appelants were originally sentenced was set aside by the granting of a new trial upon the belated motion therefor, they were subject to prosecution on the original indictment; Slack v. Grigsby, 1951, 229 Ind. 335, 344, 97 N.E.2d 145; in the same manner and for the same reasons that they could have been retried had they been granted a new trial upon timely motion therefor.

If appellants were denied an appeal by acts of the authorities of the Indiana State Prison until the statutory time for appeal had expired, that fact would not nullify the judgment lawfully rendered against them by the Hancock Circuit Court. State ex rel. Cook v. Howard, 1946, 223 Ind. 694, 699, 64 N.E.2d 25.

The effect of the granting of the motion for permission to file a belated motion for a new trial was to extend the time for appeal. The sustaining of the belated motion for a new trial acknowledged error in the original trial and furnished to appellants the same relief they might have secured by an appeal timely filed.

Since appellants have been accorded the same relief--a new trial--as they would have received by a timely appeal, they were, in effect, granted 'the type of appeal generally afforded those convicted of crime' in Indiana. See Dowd v. United States ex rel. Cook, 1951, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215, 219.

These appellants have been accorded a new trial of the issues and a timely appeal from the judgment of the trial court in that trial. The record here does not show that their substantial rights were prejudiced by any delay. Pitts v. State, 1939, 216 Ind. 168, 23 N.E.2d 673; Blanton v. State, 1954, 233 Ind. 51, 54, 115 N.E.2d 122, 116 N.E.2d 631; Henderson v. State, 1954, 233 Ind. 598, 602, 122 N.E.2d 340.

It is worthy of note, however, that the record does not show that their reason for not filing a motion for a new trial was because they were in prison and 'under legal disability, and without funds, they were unable to secure a lawyer to advise them the steps or procedure necessary to file a belated motion for a new trial after the expiration of statutory time until the recent decision of the Supreme Court of the State of Indiana in the case of Walker v. State , 82 N.E.2d 245, which decision pointed the necessary steps available to present and file a belated motion for a new trial after the expiration of the statutory time in order to perfect the record, in order to appeal.'

There is no time limitation on prosecution for murder in Indiana and if, under the factual situation shown by the record here, appellants were to be discharged the result would be to impose a limitation within which an accused could be prosecuted for murder.

Society is entitled to some consideration in dealing with crime. The loss of evidence and the death of witnesses may affect the State as well as the defendant. Due process does not require that the prisoner may sit idly by and await the death of State witnesses or the loss of material evidence, then petition the trial court for a belated motion for a new trial and, if unsuccessful at such trial, secure his discharge by contending in this court that his constitutional rights were violated because of such delay, or because he was not granted a timely appeal from a judgment which was subsequently set aside by the granting of a belated motion for a new trial.

Due process does not, on the record in this case, require that appellants be discharged.

Second: Did the trial court err in denying defendants-appellants' motion to be personally present in the court room during the hearing and argument on their motion for a new trial?

Appellants rely upon State ex rel. Cutsinger v. Spencer, 1941, 219 Ind. 148, 41 N.E.2d 601, and State ex rel. White v. Hilgemann, 1941, 218 Ind. 572, 34 N.E.2d 129, for support of their assertion that the motion for a new trial is a part of, or a continuation of, the original trial.

State ex rel. White was an action by a poor person to obtain counsel, at the expense of the county, to perfect and present an appeal of a judgment rendered against him at the conclusion of his trial for murder in the first degree. This case lends no support to appellants' position here, but, on the contrary, the language of this court in State ex rel. White v. Hilgemann, supra, 1941, 218 Ind. 572, at page 577, 34 N.E.2d 129, at page 131, as follows 'The Batchelor case [Batchelor v. State, 189 Ind. 69, 125 N.E. 773] deals with the right to counsel before and during the trial, but the reasoning supports the view that the defendant is entitled to have counsel to advise him and represent him on appeal.',

clearly recognizes that the 'trial' and the 'appeal' are separate proceedings.

State ex rel. Cutsinger v. Spencer, supra, 1941, 219 Ind. 148, 41 N.E.2d 601, was also an action for mandate seeking to compel the trial court to furnish relator, at the expense of the county, a certified copy of the record in a criminal proceeding, for use in the preparation and filing of a petition for writ of error coram nobis.

The statement on pages 152 and 153 of 219 Ind., on page 602 of 41 N.E.2d, upon which appellants also rely, and which is as follows:

'After he has been convicted, and the judgment has become final, and it has been determined upon appeal that there was no prejudicial error in the trial, or when the time is past and the right to a review for error has been waived, the defendant is no longer 'the accused,' and the 'criminal prosecution(s)' is ended.';

is dicta which must be considered in connection with the facts and circumstances in that case. There, the relator had been convicted, was serving his sentence in the Indiana State Prison, and the time for taking an appeal had expired, thereby waiving the right to review for error. Certainly, under such circumstances the defendant is no longer 'the accused.' However, this case cannot be considered as authority for the statement, that a defendant who takes the proper steps to appeal from a judgment of conviction remains the accused after the jury has found him guilty and the court has entered judgment upon the verdict. At this point the defendant stands convicted and ceases to be the 'accused' within the meaning of Article I, Section 13 of the Constitution of the State of Indiana.

Insofar as State ex rel. Cutsinger v. Spencer, supra, 1941, 219 Ind. 148, 41 N.E.2d 601, purports to hold that a defendant continues to be the accused person referred to in Section 13 of Article I of the Constitution of the State of Indiana until his case has been affirmed on appeal, it is disapproved.

Ex Parte Huffman, 1914, 181 Ind. 241, 104 N.E. 511, upon which appellants rely to...