Polomskey v. State
| Decision Date | 25 January 1943 |
| Docket Number | 27752. |
| Parties | POLOMSKEY v. STATE. |
| Court | Indiana Supreme Court |
Harry Taylor, of South Bend, for appellant.
Walter O. Lewis, Deputy Atty. Gen., and George N. Beamer, Atty Gen., for the State.
The appellant was charged by an affidavit, in three counts, with (1) burglary, (2) grand larceny, and (3) grand larceny while armed with a revolver. On February 16, 1942, the affidavit was read to the appellant in open court and he was instructed as to his constitutional rights, included his right to plead not guilty to any or all of the counts of the affidavit. At that time the appellant indicated that he wanted to plead guilty to all three counts of the affidavit. Upon learning that the appellant had no counsel, the court instructed the County Attorney for the poor to inform and instruct the appellant as to his constitutional rights. After a consultation with said attorney the appellant pleaded guilty to the second and third counts. He was then adjudged guilty of the charges contained in each of said two counts his age was found to be thirty years and he was sentenced for not less than one nor more than ten years on the second count, and for a period of twenty years on the third count. The sentence on the third count was not to start until the appellant had served the term on the second count.
On April 8, 1942, the appellant appeared in court, by the two attorneys who represent him in this appeal, and filed a motion to modify the judgment of the court on the ground that the offense of grand larceny, as charged in the second count is identical with the offense charged in the third count of said affidavit. To this motion the State filed a demurrer.
On April 23, 1942, the appellant, by his attorneys, withdrew his motion to modify the judgment and filed separate motions to withdraw his pleas of guilty to the second and third counts of the affidavit, assigning as reasons therefor that there had been no arraignment of said appellant; that there had been no waiver of said arraignment and that there had been no trial, plea or disposition of the first count of the affidavit. Each of the appellant's motions to withdraw his pleas of guilty was overruled and the appellant then refiled his motion to modify the judgment. On the following day the State again filed a demurrer to the appellant's motion to modify the judgment and the appellant filed motions for a new trial 'on his motion to withdraw plea of guilty to second count' and also 'on his motion to withdraw plea of guilty to the third count'. The court overruled the appellant's motion for a new trial and the State's demurrer to the appellant's motion for a modification of the judgment and amended the judgment by eliminating the sentence on the second count, leaving only a sentence of twenty years on the third count.
The appellant has assigned as error the action of the court: (1) in overruling his motion to withdraw the pleas of guilty to the second and third counts; and (2) in overruling his motions for a new trial.
It has been held by this court that a motion for a new trial is ineffectual where a plea of guilty has been entered; that in such a case an application should be made to vacate the judgment and for leave to withdraw the plea; and that it is a contradiction of terms to speak of a new trial in a cause where the has been no trial. Myers v. State, 1900, 156 Ind. 388, 59 N.E. 1052.
It has been held that by appearing in court and pleading guilty, a defendant waives arraignment. Nahas v. State, 1927 199 Ind. 117, 155 N.E. 259. It follows that, even though there had been no arraignment, that fact would not furnish a valid ground for a motion to withdraw a plea of guilty. In the instant case, however, the record shows a recital by the...
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