Nahas v. State

• Citation: 155 N.E. 259,199 Ind. 117
• Decision Date: 24 February 1927
• Docket Number: 24,812
• Parties: Nahas v. State of Indiana
• Court: Indiana Supreme Court

155 N.E. 259

199 Ind. 117

Nahas v. State of Indiana

No. 24,812

Supreme Court of Indiana

February 24, 1927

1. CRIMINAL LAW.---Sentencing a defendant to the reformatory without any finding as to his age is an irregularity but not reversible error. p. 120.

2. CRIMINAL LAW.---Motion for new trial presents no question on refusal of court to vacate judgment.---A motion for a new trial assigning as ground therefor that defendant's counsel, without his consent, withdrew his plea of not guilty and entered a plea of guilty, presents no question. p. 120.

3. CRIMINAL LAW.---Motion to set aside judgment on plea of guilty and to withdraw plea held proper practice.---An application to the trial court to set aside the judgment rendered on a plea of guilty and to permit the defendant to withdraw such plea, for reasons assigned, is a recognized procedure in this state. p. 120.

4. CRIMINAL LAW.---Application to vacate judgment on plea of guilty and to permit defendant to withdraw such plea is addressed to discretion of court.---An application to set aside a judgment rendered on a plea of guilty and to permit the defendant to withdraw such plea and enter a plea of not guilty is addressed to the sound legal discretion of the trial court, and though its action thereon is reviewable on appeal, the Supreme Court will not interfere unless such discretion has been clearly abused. p. 120.

5. CRIMINAL LAW.---Arraignment waived by pleading to the issue.---A defendant waives arraignment by appearing in person in open court and pleading to the issue. p. 121.

6. CRIMINAL LAW.---It will be presumed that court complied with statute in pronouncing judgment.---Where the record on appeal fails to show that the court complied with 2337 Burns 1926 by asking the defendant whether he has any legal cause why judgment should not be pronounced upon him, it will be presumed that he did. p. 121.

7. CRIMINAL LAW.---Application to have judgment vacated which was rendered on counsel's plea of guilty should be granted and defendant permitted to withdraw plea.---On proper application, a judgment of conviction rendered on a plea of guilty entered by defendant's counsel, without his consent, should be set aside and defendant permitted to withdraw such plea, in view of the constitutional provision that he is entitled to "meet the witnesses face to face" (Art. 1, 13, of the Constitution, 65 Burns 1926) p. 122.

From LaPorte Superior Court; Harry L. Crumpacker, Judge.

Peter Nahas was convicted of unlawfully transporting intoxicating liquor, and he appeals.

Reversed.

Lemuel Darrow, Earl Rowley and C. V. Shields, for appellant.

Arthur L. Gilliom, Attorney-General and George J. Muller, Deputy Attorney-General, for the State.

OPINION

Myers J.

On April 1, 1924, a transcript of the proceedings had in the city court of the city of Michigan City was filed in the court below, wherein it appears that on March 31, 1924 appellant, by affidavit, was charged with transporting intoxicating liquor in violation of § 1, Acts 1923 p. 108. Three days later, according to the record, and at the March term, appellant with his counsel, Louis J. Finske, appeared in open court and pleaded not guilty. Thereupon his counsel waived a jury and the cause was submitted to the court for trial. At the conclusion of the evidence given by the first witness, counsel for appellant, in his presence, withdrew his plea of not guilty and entered a plea of guilty, whereupon the court rendered judgment and sentenced him to the Indiana reformatory in accordance with the penalty fixed in the act, supra. The court also, as a part of the judgment, allowed two officers a seizure fee of $ 150 and the sheriff $ 50 for storage and expense in selling the seized car and ordered that the liquor seized be destroyed. On the same date, it appears that appellant came into court represented by other attorneys who filed for him a motion for a new trial. By this motion, pertinent to this appeal, it was made to appear that upon appellant's plea of not guilty, the cause was set for trial before a jury, but without appellant's consent, his then counsel waived the jury and withdrew his plea of not guilty and entered a plea of guilty, all without his advice, consent and against his wishes; that the finding of the court was contrary to law.

At the May term, June 11, 1924, appellant, in writing duly verified, moved the court, in substance, to set aside and vacate the judgment entered against him, strike out his plea of guilty and permit him to plead not guilty, for the reason his then counsel, without his advice, consent and against his wishes, waived a jury; that while the trial was in progress before the court, his counsel, without consulting him, without his consent and against his wishes, withdrew his plea of not guilty and entered a plea of guilty for him. On July 5, 1924, the court overruled appellant's motion to set aside the judgment and sentence theretofore entered, and at the same time overruled his motion for a new trial. Appellant perfected an appeal from the foregoing judgment, and has assigned as errors the action of the court in overruling his motion for a new trial, and his motion to vacate the judgment and sentence, and allow him to withdraw the plea of guilty and permit him to plead not guilty.

This is a novel case in many respects. In the absence of advisory evidence, the liberality of the court in its allowance of seizure fees and, to the sheriff, fees for making the sale of the automobile without an order of sale and in advance of any knowledge as to the expense of keeping the property and cost of sale, as contemplated by the statute (§ 2748 Bur...