Lucas v. State

• Decision Date: 30 June 1949
• Docket Number: 28546.
• Citation: 86 N.E.2d 682,227 Ind. 486
• Parties: LUCAS v. STATE.
• Court: Indiana Supreme Court

86 N.E.2d 682

227 Ind. 486

LUCAS v. STATE.

No. 28546.

Supreme Court of Indiana

June 30, 1949

Appeal from Criminal Court of Marion County No. 2; Saul I. Rabb, judge.

T Ernest Maholm, Indianapolis, for appellant.

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

YOUNG Judge.

This is an appeal from a judgment denying appellant's petition for a writ of error coram nobis.

On July 24, 1947, appellant was convicted of robbery and was sentenced to serve a term of not less than 10 years and not more than 25 years in the Indiana State Prison. The affidavit on which appellant was convicted was filed on February 13 1947. He and his brothers employed counsel who obtained his release upon bond, and he was at large and free to consult with his attorney until the trial on July 24, 1947. During this period he had five or six conferences with his counsel at his counsel's office and appeared at the trial with counsel and made no objection to going to trial without a jury. After conviction, a motion for a new trial was filed in his behalf based in part upon newly discovered evidence. The motion was submitted, and evidence was heard on the question of newly discovered evidence, and the motion overruled. No appeal was taken.

On November 30, 1948, the trial court received from appellant by mail a crude petition for a writ of error coram nobis, not prepared by an attorney. It was filed and thereafter an amended petition was filed by an attorney employed by appellant and his brothers. The only substantial grounds alleged in either the original or amended petition was that appellant was denied the right of a trial by jury and that appellant was inadequately represented by his counsel in that his attorney did not ask for a jury trial after being advised that appellant desired such a trial. By order of court appellant was brought down from the prison for trial of his coram nobis petition.

A motion for a new trial of the issues presented by the petition for a writ of error coram nobis was filed and overruled. In the motion for a new trial it is alleged, among other things, that the decision of the court was contrary to law. In the assignment of errors here it is alleged that the court erred in holding that the appellant had waived his constitutional right of trial by jury in the absence of any court record of waiver. Overruling appellant's motion for a new trial was assigned as further error.

The State takes the position that no question is presented because a new trial is not contemplated in a coram nobis proceeding and the only way to raise any question in this court in a coram nobis proceeding is to assign as error that the order of the court denying the writ is contrary to law. It is true that a motion for a new trial is not contemplated in a coram nobis proceeding. Fluty v. State, 1946, 224 Ind. 652, 656, 71 N.E.2d 565. Rule 2-40 of this court provides that the sufficiency of pleadings and the evidence in a coram nobis proceeding will be considered upon an assignment of error that the order is contrary to law. The rule does not say that error may not be presented in any other way. The motion for a new trial alleged that the order of the court here appealed from was contrary to law, and the assignment of errors alleged that the court erred in overruling the motion for a new trial. So that we have had presented to us in a backhanded way the question of whether the denial of appellant's petition was contrary to law. While appellant has not conformed to our rule or the better practice in presenting his case to us, the record is in such shape that we understand his contentions, and we have decided to give them consideration.

Appellant's primary contention is that he was denied his constitutional right to a trial by jury. Our constitution provides that in all criminal prosecutions the accused has the right to a trial by an impartial jury. Art, 1, § 13, Constitutional of Indiana. But this right, along with all the other rights granted by the same section of the Constitution, may be waived. § 9-1803, Burns' 1933; Murphy v. State, 1884, 97 Ind. 579, 585; Batchelor v. State, 1920, 189 Ind. 69, 76, 125 N.E. 773; State v. Beckwith, 1944, 222 Ind. 618, 619, 57 N.E.2d 193; Brown v. State, 1941, 219 Ind. 251, 261, 264, 37 N.E.2d 73, 137 A.L.R. 679; Irwin v. State, 1942, 220 Ind. 228, 238, 41 N.E.2d 809; Fluty v. State, supra.

It is appellant's further claim that because no court record was made of a waiver of a jury there was none. He bases this contention on the statute which provides that the defendant and the prosecuting attorney, with the consent of the court, may submit the trial of a criminal case to the court, and that all other trials must be by jury. § 9-1803, Burns' 1942 Replacement. He contends that a court speaks only by its record and that no waiver was shown by the record in this case. In the case before us, the question is not the assent of the court, but the waiver of the appellant and appellant's acts and conduct may be shown otherwise than by court record.

In Irwin v. State, supra, this court said, 220 Ind. at page 238, 41 N.E.2d at page 813, in speaking of the constitutional rights guaranteed by § 13 of Art. 1 of the Constitution of Indiana:

'* * * These constitutional rights may be waived, but the waiver must be made freely and understandingly, and unless they are so waived there is error in the proceeding. Where a defendant is represented by competent counsel, a failure to assert or claim constitutional rights is treated as a waiver, but where a defendant is not represented by counsel, the mere failure to assert or insist upon a constitutional right is not of itself sufficient to establish a waiver. * * *'

In the case before us appellant was a man 47 years of age. He was free for several months after arraignment and before trial. During this period, he and his brothers employed counsel and the evidence showed that he had a number of conferences at counsel's office. There is no indication in the record that counsel employed was not competent. On the contrary there appears in...