Notter v. Beasley

• Decision Date: 27 April 1960
• Docket Number: No. 29807,29807
• Citation: 240 Ind. 631,93 A.L.R.2d 905,166 N.E.2d 643
• Parties: , 93 A.L.R.2d 905 Hubert NOTTER, Appellant, v. Herbert BEASLEY, as Sheriff of Vigo County, Indiana, Appellee.
• Court: Indiana Supreme Court

Page 643

166 N.E.2d 643

240 Ind. 631, 93 A.L.R.2d 905

Hubert NOTTER, Appellant, v. Herbert BEASLEY, as Sheriff of Vigo County, Indiana, Appellee.

No. 29807.

Supreme Court of Indiana.

April 27, 1960.

John A. Kesler, Terre Haute, for appellant.

Leonard P. Kincade, Terre Haute, for appellee.

ARTERBURN, Chief Justice.

This is an appeal from a judgment denying a petition for a writ of habeas corpus. The appellant was arrested and held as a fugitive from a charge pending in the State of Oklahoma for larceny of an automobile. The amended return of the sheriff set forth that he held an extradition warrant for the arrest of the appellant, Hubert Notter, duly executed by the Governor of the State of Indiana, and further stated that the appellant had signed a written waiver of the extradition proceedings and agreed to return to the State of Oklahoma in the custody of officers of that state. The appellant filed exceptions to the amended return and an answer in two paragraphs, stating that he was not the one named in the warrant and was not the person charged with the crime in the State of Oklahoma. The exceptions also pointed out that no copy of the warrant was filed with the amended return of the sheriff as provided under § 3-1914, Burns' Indiana Statutes, 1946 Replacement, Acts 1881, Spec. Sess., ch. 38, § 787, p. 240, Martin v. Newland, 1925, 196 Ind. 58, 147 N.E. 141; West, et al. v. McKeon, 1953, 232 Ind. 403, 113 N.E.2d 45.

Appellant's motion for a new trial, which was overruled, contended that the court erred on the ground that the decision was not sustained by sufficient evidence and was contrary to law. Error was further claimed by reason of the admission of certain evidence, including a picture of the appellant introduced for the purposes of identification.

The appellant points out under the claim of insufficiency of evidence that at the trial no extradition warrant issued by the Governor of the State of Indiana, as provided by statute, was introduced in the evidence or reference made thereto during the trial.

In reviewing a judgment on appeal it is our duty to sustain the action of the trial court, if it can be done on any legal grounds shown by the record. The finding herein must be considered as a general finding for the appellee (defendant-sheriff). Supreme Court Rule 1-7B; Roney v. Rodgers, Sheriff, 1921, 190 Ind. 368, 130 N.E. 403.

The appellant's brief deals in the main with the failure on the part of the appellee to place in evidence the extradition warrant of the Governor of the State of Indiana. Although the better practice would have been to have introduced the extradition warrant in evidence, in view of our duty in the respect stated above, we find it unnecessary to consider this failure or oversight.

The return pleaded and the appellant admits the execution of the following waiver:

'Defendant's Exhibit 2

'Waiver of Extradition

'I, Hubert Gordon Notter, 35 years of age, hereby freely and voluntarily certify and state that I have been duly informed of the demand made by the County of Tillman in the State of Oklahoma for my surrender and of the crime with which I am charged towit: Larceny of an Automobile and that I have been informed of my right to demand legal counsel and to test the legality of my arrest and of my right to apply for a writ of habeas corpus and having been fully informed as to the above matters and not desiring to test the legality of my arrest and not desiring to institute a habeas corpus proceeding, I do now expressly waive all such rights and agree to accompany any duly authorized officer of the State of Oklahoma as a prisoner from Terre Haute, Indiana, to the State of Oklahoma, for the purpose of answering a charge of Larceny of an Automobile and I further agree and hereby waive all formalities and acknowledge my willingness to return to the State of Oklahoma without any governor's requisition or other papers legally necessary in such case and expressly waive, freely and voluntarily all and any of such matters or rights.

'Dated and signed at Terre Haute, Indiana, this 11th day of February, 1959.

'Witness John O'Leary

'Witness James F. Murphy

'Hubert G. Notter'

It is a well recognized principle of law, which scarcely needs citation of authority, that a party to an action whether civil or criminal, may waive certain constitutional rights in the proceedings; among them the right to a jury trial, the right against self-incrimination, (taking the witness stand or signing confessions) to mention but a few that arise frequently in the course of litigation or a trial.

In the case of Brown v. State, 1941, 219 Ind. 251, 261, 37 N.E.2d 73, 77, 137 A.L.R. 679, this Court said:

'The constitutional provision relied on by the appellant is found in the Bill of Rights, that portion of our constitution which guarantees certain rights and privileges to the individual. This same section which guarantees to the individual accused of crime the right to a public trial in the county in which the offense shall have been committed, also provides that the accused shall have the right to a trial by jury, the right to be heard by himself and counsel, the right to demand the nature and the cause of the accusation against him and to have a copy thereof, and the right to meet witnesses face to face. All of these rights guaranteed by this section of the constitution are solely for the benefit of the accused. Ordinarily, an individual may waive any right provided for his benefit by contract, by statute or by the constitution. So, a person prosecuted for a crime may waive the rights guaranteed to him by § 13, Article 1 of the Constitution of Indiana. Batchelor v. State, 1920, 189 Ind. 69, 125 N.E. 773; Butler v. State, 1884, 97 Ind. 378; Murphy v. State, 1884, 97 Ind. 579.

'It will not be contended that a person accused of crime may not waive his right to a trial by jury, his right to be heard by himself and counsel, or his right to meet the witnesses face to face. He waives his right to meet the witnesses face to face by taking their depositions to be read on the trial. Butler v. State, supra. He may waive his right to trial by jury and agree to trial by the court. Murphy v. State, supra. He may waive his right to be heard by himself and counsel. He may waive his right to a trial as to his guilt by pleading guilty * * *.' State ex rel. Fox, etc. v. LaPorte Cir. Ct. et al. 1956, 236 Ind. 69 138 N.E.2d 875; Shoemaker v. Dowd, Warden, 1953, 232 Ind. 602, 115 N.E.2d 443; Willennar v. State, 1950, 228 Ind. 248, 91 N.E.2d 178; Spitler v. State, 1943, 221 Ind. 107, 46 N.E.2d 591; Ogle v. State, 1920, 193 Ind. 187, 127 N.E. 547.

Whether the execution of the waiver was a free and voluntary act could have been questioned and challenged in the trial court in the same manner that a written confession may be contested. The appellant made no contention that the waiver was signed under duress, threats or was obtained in an unlawful manner. The appellant, on the witness stand, admitted the execution of the instrument.

In oral argument, however, his attorneys contended appellant had the privilege of reneging or revoking such a waiver, and that he did this by filing the petition for habeas corpus. We first point out that the petition was not filed by the appellant but rather by his wife. It would be a farfetched conclusion to say that a wife may intervene and revoke or renege on any waiver made by a husband in the course of a trial. A party has no privilege after waiving a right in a legal proceeding to revoke or withdraw the waiver without the consent of the party to whom made. We have never known of a case and none has been pointed out to us in which a defendant has waived his constitutional privilege against self-incrimination and made a voluntary confession, and the court has then permitted him to withdraw the confession on the ground that he desires to revoke the constitutional privilege waived in making the confession. The uncertainty created if such vacillation were permitted would result in trifling with the judicial processes.

The evidence at the trial centered mainly upon the issue of the alibi of the appellant and his identity. An alibi is not a proper issue in such a proceedings for extradition unless it relates directly and primarily to the issue of identity. The guilt or innocence of a fugitive is a question to be determined in the demanding state and not in a habeas corpus proceeding in this state. Acts 1935, ch. 49, § 20, p. 134, being § 9-438, Burns' 1956 Replacement; Johnson v. Burke, 1958, 238 Ind. 1, 148 N.E.2d 413; Taylor v. Smith, 1938, 213 Ind. 640, 13 N.E.2d 954; Ex parte Germain, 1927, 258 Mass. 289, 155 N.E. 12, 51 A.L.R. 797; 25 Am.Jur., Habeas Corpus, § 73, p. 200.

The appellant finally contends that hearsay evidence was improperly introduced over his objections on the issue of identity. In substance, the evidence came from the officer as a witness who arrived to return the appellant to Oklahoma. He referred to a photograph of the defendant which he said was identified by persons in the State of Oklahoma who claim to have seen the appellant steal the automobile in question. This witness stated that such persons identified the picture (defendant's exhibit 4) as the picture of the man wanted in the State of Oklahoma and against whom the charge was there pending. The appellant, in opposition to the introduction of this photograph, relies upon the general principles excluding hearsay evidence, but offers no specific case in point. Appellant further generalizes...