Ramsey v. State, 26108.

• Decision Date: 20 December 1932
• Docket Number: No. 26108.,26108.
• Parties: RAMSEY v. STATE.
• Court: Indiana Supreme Court

204 Ind. 212

183 N.E. 648

RAMSEY

v.STATE.

No. 26108.

Supreme Court of Indiana.

Dec. 20, 1932.

Appeal from Fountain Circuit Court; Frank J. Davidson, Judge.

Harry Ramsey was convicted of assault with intent to commit robbery, and he appeals.

Reversed and remanded, with instructions.A. T. Livengood and V. E. Livengood, both of Covington, for appellant.

James M. Ogden, Atty. Gen., and Harry Taylor, Deputy Atty. Gen., for the State.

TREANOR, C. J.

Appellant was charged by affidavit in one count with automobile banditry ¹ under sections 2425 and 2548, Burns' Ann. Ind. St. Supp. 1929, Acts of 1929, c. 54, pp. 136, 137, §§ 1, 3.² The jury returned the following verdict: “*** We, the jury, find the defendant guilty of the crime of an assault with intent to commit robbery as charged in the affidavit. ***”

Appellant assigns the following as error: (1) The court erred in overruling appellant's motion for a change of venue of said cause, from the county; (2) the court erred in overruling appellant's motion in arrest of judgment; (3) the court erred in overruling appellant's motion to discharge him; (4) the court erred in overruling appellant's motion for a new trial; (5) the court erred in refusing to grant further time to the official reporter of the Fountain circuit court, on the written application of the defendant and said reporter to prepare a longhand transcript of the evidence in the trial of said cause.

In construing section 2239, Burns' Ann. Ind. St. 1926 (Acts of 1905, p. 584, c. 169, § 207), this court has repeatedly held that it is within the discretion of the trial court to grant a change of venue from the county in cases where the punishment cannot be death; and the action of the court will not be reversed on appeal, unless it appears that there was an abuse of such discretion.³

Appellant's brief contains no contention that the trial court abused its discretion in refusing to grant a change of venue from the county, and it does not appear that there was any abuse of discretion on the part of the trial court in that respect.

Appellant's motion in arrest of judgment assigned the following causes: (1) That the facts stated in the said affidavit do not constitute a public offense in the state of Indiana; (2) that the facts set forth in the affidavit do not constitute the public offense of intent to commit robbery, under the laws in the state of Indiana, nor of an assault thereof; (3) that the court herein did not have jurisdiction of said cause; (4) that the verdict returned by the jury is not warranted by the facts set forth in the affidavit under the laws of the State of Indiana.

Section 2326, Burns', etc., 1926⁴ (Acts 1905, p. 584, c. 169, § 283, as amended, Acts of 1925, p. 490, c. 203), defines a motion in arrest of judgment and provides the causes for which it may be granted. Tokacs v. State (1930) 202 Ind. 259, 173 N. E. 453.

Appellant presents no question in his brief as to the first of the statutory causes for a motion in arrest of judgment, but in reliance upon the second cause contends that “the affidavitmust contain the elements of the crime as shown by the verdict,” citing Ellis v. State (1895) 141 Ind. 357, 40 N. E. 801. In that case this court said: “Another reason urged in favor of the motion in arrest is that the verdict was defective. We do not think that a motion in arrest should be sustained for this cause alone. It may well be that the verdict may be looked to in connection with the indictment or information to determine the sufficiency of the latter in passing upon the motion in arrest; but the only reasons given in the statute for arresting a judgment *** relate to the jurisdiction of the court trying the case, and the sufficiency of the indictment or information to charge the defendant with a public offense.”

The effect of the holding in that case is that, if the indictment or affidavit is sufficient, a motion in arrest of judgment should not be sustained solely because the verdict is defective. In the instant case there is no contention that the affidavit does not state facts sufficient to constitute a public offense, but the contention is that the affidavit does not state facts sufficient to constitute the public offense of which appellant was convicted. This court has held that, if a person is found guilty of an offense that is not charged in the indictment, the verdict is contrary to law. McGuire v. State (1875) 50 Ind. 284;Thetge v. State (1882) 83 Ind. 126. That a verdict is contrary to law is a statutory cause for new trial. Section 2325, Burns', etc., 1926, 9th cl., Acts 1905, p. 584, c. 169, § 282, cl. 9. Therefore the court did not err in overruling appellant's motion in arrest of judgment.

The motion to discharge the defendant was made on the ground “that the verdict of the jury is contrary to and is not embraced in the allegation set forth in the affidavit.” If the verdict was defective for the reason given by appellant, it was contrary to law, and therefore would entitle appellant to a new trial, but, under section 2324, Burns' supra,⁵ he would not be entitled to be discharged, and his motion was properly overruled.

Appellant's motion for a new trial contained fourteen causes, eight of which predicated error on the giving, or refusing to give, certain instructions. We have examined these causes, and, with the exception of three of the court's instructions, find no error, and feel that a discussion of the court's action thereon would involve only questions which are well settled and would not be of any value for a new trial. The error involved in the court's instructions Nos. 2, 3, and 18 will be covered later in our discussion of the appellant's eighth cause for a new trial-“that the verdict of the jury is contrary to law.”

Appellant's twelfth cause for a new trial presents for review the action of the court on March 28th, after the jury returned its verdict, in remanding the defendant to the custody of the sheriff pending the rendition of judgment upon the verdict. Judgment was rendered on April 17th. The Indiana Constitution (article 1, § 17) provides that “offenses, other than murder and treason, shall be bailable by sufficient sureties.” The form of recognizance bond required in criminal proceedings for the appearance of the defendant is prescribed by sections 2112 and 2184, Burns', etc., 1929 (Acts 1927, c. 132, p. 411, §§ 2 and 6). The condition of the bond is that the prisoner shall appear in court on the day named to answer the charge “and from day to day and from term to term thereof, and abide the order of the court until said cause is determined and not depart therefrom without leave.” It is provided in section 2185, Burns', etc., 1929 (Acts of 1927, p. 416, c. 132, § 7), that such recognizance “shall be continuing, and the defendant shall not be required to renew it during pendency of the proceedings, unless ordered to do so by the court for cause shown.” A recognizance taken in conformity with the foregoing statutes is not discharged by the return of a verdict, but continues to bind the principal and sureties thereon after the verdict of the jury is returned, and, if the defendant fails to appear for the pronouncement of judgment, the recognizance shall be declared forfeited in accordance with section 2193, Burns', etc., 1926⁶ (Acts 1905, p. 584, c. 169, § 159).

“The liability of the principal and his sureties upon a recognizance in a criminal case is made to depend upon the neglect of the defendant, without sufficient excuse, to appear for trial or judgment, or upon any other occasion when his presence may be lawfully required according to the condition of his bond.” State v. Hindman (1903) 159 Ind. 586, 588, 65 N. E. 911.

Therefore the appellant was entitled to continue to go, after the return of the verdict, under the recognizance theretofore entered into, unless he was surrendered by a surety on such recognizance under section 2189 et seq., Burns', etc.⁷ (Acts 1905, p. 584, c. 169, § 155 et seq.) or unless the court should require appellant to renew his recognizance “for cause shown” as provided in section 2185, supra, and he should fail to do so.

It does not follow that the court's error in remanding the appellant to the custody of the sheriff pending the rendition of judgment constituted sufficient cause for a new trial, even though, as appellant contends, it constituted an irregularity in the proceeding of the court. The statutory cause for new trial upon which appellant relies is as follows: “Irregularities in the proceedings of the court or jury, or *** any order of the court, or abuse of discretion, by which the defendant was prevented from having a fair trial.” Section 2325, cl. 1, Burns', etc., 1926 (Acts of 1905, p. 584, c. 169, § 282, cl. 1).

It is not every irregularity in the proceedings which affords sufficient grounds for a new trial, but only such irregularities as prevent the defendant “from having a fair trial.” Action taken by the court with respect to the custody of the defendant after the verdict had been returned by the jury and the jury had been discharged could not have affected the trial of the defendant.

Appellant's fifth assignment of error is based upon the court's refusal to grant further time in which to secure a longhand transcript of the evidence. It appears that the verdict was returned on March 28, 1931; that on April 17th appellant filed his motion for new trial, which was, on that date, overruled and judgment was pronounced. Defendant prayed an appeal the same day, April 17th, and 100 days were given for filing bills of exceptions, or until July 27th. On July 15th appellant filed his verified application for an extension of time to file bills of exceptions, which application was supported by the affidavits of appellant's attorney and the official stenographer. The affidavits were to the effect that upon “the - day of June” the appellant engaged the official stenographer to prepare a longhand...