Majko v. State, 30380

• Decision Date: 18 May 1965
• Docket Number: No. 30380,30380
• Citation: 246 Ind. 506,207 N.E.2d 212
• Parties: Joe MAJKO, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 212

207 N.E.2d 212

246 Ind. 506

Joe MAJKO, Appellant, v. STATE of Indiana, Appellee.

No. 30380.

Supreme Court of Indiana.

May 18, 1965.

McNutt, Hurt & Blue, Martinsville, for appellant.

Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Deputy Atty. Gen., for appellee.

MYERS, Judge.

This is an appeal from a judgment of conviction in the Morgan Superior Court. Appellant was charged by affidavit with the crimes of (1) operating a motor vehicle with a suspended operator's license; (2) operating a motor vehicle while under the influence of intoxicating liquor; and (3) public intoxication. There was a trial without the intervention of a jury on August 27, 1962. The matter was taken under advisement, and on December 6, 1962, the court found appellant guilty of driving a motor vehicle while his operator's license was suspended. He was sentenced to one hundred eighty days' imprisonment on the Indiana State Farm.

A motion for new trial was filed promptly based upon the following grounds: (1) The finding of the court was contrary to law; and (2) the finding of the court was not sustained by sufficient evidence. The motion was overruled and this appeal followed.

Appellant's argument is divided into two parts. In the first part he claims that the State failed to prove the suspension of his driver's license. In the second part he contends that the court lacked jurisdiction to enter a finding and judgment on December 6, 1962.

As to the first part of the argument, the record reveals that appellant was in Indianapolis on July 22, 1962. He was going to Paragon to visit a friend over the weekend. The friend drove to Indianapolis and picked up appellant after obtaining a 1960 Ford convertible. The friend's wife was with him, but she drove a separate automobile. On interrogation of the friend, the following colloquy took place:

'Q. Allright, and what was the purpose of your going up there?

'A. I went up there to pick him up, as he was coming to my house to spend the weekend.

'Q. Allright, Then you knew at that time that he did not have a drivers license, is that correct?

'A. Yes.

'Q. Was that the purpose of this?

'A. Yes.'

The two of them proceeded to drive to Martinsville after stopping at an auction held in a sale barn. They were halted by a police officer just before entering town. At that time, appellant was in the rider's seat of the automobile. They were not held for any offense. Later on that night the same officer saw the car being driven by appellant who went around two or three blocks in Martinsville, then pulled into a lot of high weeds, stopped the car and got out presumably to go into a nearby apartment house where his wife lived. That is where he was arrested, taken to the police station and charged with driving a motor vehicle when his operator's license was suspended.

There was a conflict in the testimony as to whether appellant was driving the motor vehicle at that time, but this was resolved by the trial judge who found in favor of the State. The point is not argued by appellant in his brief, so no issue is presented to us as to the operation of the automobile. Appellant merely contends that there is insufficient proof of the suspension of his license on July 22, 1962.

We have previously stated that appellant's friend said he drove to Indianapolis in order to pick up appellant and drive him to Paragon for the week-end because appellant had no driver's license. Appellant's employer, a Used Car Dealer in Indianapolis, testified to the following:

'The lot we have at 1020 E. Washington Street, Joe Majko is the manager of this lot, and I knew that Joe didn't have a drivers license and the Chevrolet these people were driving looked like it might have some trouble, and I depend on him a lot so I gave Mr. Sparks [Appellant's friend] the 60 Ford Convertible to take Joe home, also with the understanding that he would return him Monday morning, and also that he would not let him drive the car.'

On cross-examination of appellant, the following question was asked:

'Q. Also on the 16th day of September 1961, your operator's license were suspended for a period of two years, was it not?

'A. That is right. That is the reason I made sure that I had somebody to chauffeur me.'

Appellant argues that no definite proof of the revocation of his driver's license was introduced in evidence as provided by statute. He contends that the only way a revocation could be proved was to bring into the record an abstract of his conviction as provided by Burns' Ind.Stat., Sec. 47-1052, 1952 Replacement (Supp.), subparagraph (e), which reads as follows:

'(e) The abstract provided for by this section shall be in such form as the commissioner of the bureau of motor vehicles shall prescribe and when duly certified by the appropriate officer shall be received and accepted by any administrative agency or court as prima facie evidence of the conviction or judgment and all other action therein stated.'

This was not done. The State attempted to have the trial court take judicial knowledge of its own proceedings in an alleged Cause numbered S 61 S 164 wherein it was claimed appellant was charged with operating a motor vehicle while under the influence of intoxicating beverages and leaving the scene of an accident, found guilty of operating a motor vehicie while under the influence of liquor and his driver's license suspended for two years on date of September 16, 1961. These proceedings were not introduced in evidence and are not a part of the record, so they cannot be considered as evidence of the revocation of appellant's driver's license.

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