Rice v. State, 30933
| Decision Date | 20 February 1967 |
| Docket Number | No. 30933,30933 |
| Parties | William RICE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Lewis Davis, Indianapolis, for appellant.
John J. Dillon, Atty. Gen., Donald R. Ewers, Asst. Atty. Gen., for appellee.
The Appellant was charged by affidavit with burglary in the first degree, the significant part of which affidavit is as follows:
'BE IT REMEMBERED, That, on this day before me, NOBLE R. PEARCY, Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came EDWARD R. LIPSCOMB who, being duly sworn upon his oath says that WILLIAM RICE on or about the 7th day of AUGUST, A.D., 1965, at and in the County of Marion in the State of Indiana, did then and there unlawfully, feloniously and burglariously break and enter into the dwelling house and place of human habitation of JOHN D. COLE then and there situate at 2641 NORTHWESTERN AVENUE, City of Indianapolis, County of Marion, State of Indiana, in which said dwelling house the said JOHN D. COLE then lived, with the intent to unlawfully and feloniously and knowingly obtain and exert unauthorized control over property of said JOHN D. COLE and to deprive said JOHN D. COLE permanently of the use and benefit of said property, then and there being.'
The crime of first degree burglary is defined by Statute and is found in the Acts of the Indiana General Assembly 1941, ch. 148, § 4, p. 447, Burns' Ind.Stat. Anno. (1956 Repl.) § 10--701(a) as follows:
'Whoever breaks and enters into any dwelling-house or other place of human habitation with the intent to commit any felony therein, or to do any act of violence or injury to any human being, shall be guilty of burglary in the first degree, and on conviction thereof shall be imprisoned not less than ten (10) years nor more than twenty (20) years and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.'
After a plea of not guilty on October 29, 1965, the trial court, without the intervention of a jury, found the Appellant to be forty-six years of age and guilty as charged by said affidavit. Appellant was represented at the trial by counsel of his own selection.
Pre-sentence investigation was ordered and made and on November 12, 1965, Appellant was sentenced to a term of not less than ten (10) nor more than twenty (20) years in the Indiana State Prison. Appellant's trial counsel did not file a Motion for a New Trial, but on December 2, 1965, said Appellant filed his own Motion therefor, the same being dated November 24, 1965. The Motion, eliminating the formal parts, is in the words and figures following, to-wit:
'Comes now William Rice, defendant in the above entitled cause, and moves the Court for a new trial of said cause, for the following reasons:
1. That the verdict of the Court is contrary to law.
2. That the verdict of the Court is not sustained by sufficient evidence.
3. That the judgment of the Court is contrary to law and is not sustained by sufficient evidence.
4. That the defendant was not represented by competent counsel, in that:
(a) Said counsel offered representation of a perfunctory nature only.
(b) Said counsel failed to object to the introduction of inadmissable (sic) evidence.
(c) Said counsel abandoned defendant without filing motion for new trial and preserving the record for appeal.
WHEREFORE, defendant prays the Court for a new trial of said cause, and for all other relief proper in the premises.
Respectfully submitted,
/s/ William Rice.'
With the Motion for a New Trial, Appellant also filed a Petition for Extension of Time and Leave to Amend the said Motion, which said Motion, eliminating the formal parts, is in the words and figures following, to-wit:
'William Rice being duly sworn, upon his oath says as follows:
1. That he is the defendant in the above entitled cause wherein the Court rendered judgment, upon a finding of guilty, on the 12th day of November, 1965.
2. That he was represented at the trial of said cause by attorney Chester Wilson, Indianapolis, Indiana; that said attorney has withdrawn from the case and defendant is at present without representation; that said attorney has not and will not prepare or file a motion for new trial in said cause; and that defendant is without funds or means with which to employ other counsel.
3. That attached hereto is a self-prepared Motion for New Trial, filed for the purpose of preserving his right to file such motion within the statutory time limit, pending appointment of counsel.
4. That attached hereto is a self-prepared Pauper's Petition for appointment of attorney, Expenses of Appeal and Transcript.
5. That he wishes to reserve the right to amend said Motion for New Trial after consulting with the appointed attorney and obtaining his advice on proposed amendments, thereby having the assistance of counsel in preparing and prosecuting a proper and substantial motion for new trial.
WHEREFORE, defendant respectfully moves the Court to grant an extension of time within which appointed counsel may investigate the record, and for leave to amend the attached motion for new trial, following appointment of counsel in this cause.
/s/ William Rice.'
The Motion for a New Trial was overruled and on December 17, 1965, the trial court appointed Lewis Davis as pauper attorney. On February 28, 1966 the first praecipe was filed and on June 14, 1966, after a Petition for Extension of Time was filed and granted, the transcript was filed in the office of the Clerk of this Court.
The only error asserted and relied upon in this appeal is the overruling of Appellant's Motion for a New Trial. In his original brief, Appellant presents two points for our consideration, namely: (1) 'the verdict is contrary to law' and 'the finding of the court is not sustained by sufficient evidence', grouped together, and (2) that he was not represented by competent counsel.
Therefore, it becomes necessary to examine the evidence, together with reasonable inferences therefrom, and to consider whether it is...
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