Rogers v. State

• Decision Date: 13 January 1937
• Docket Number: 26684.
• Citation: 5 N.E.2d 509,211 Ind. 47
• Parties: ROGERS v. STATE.
• Court: Indiana Supreme Court

5 N.E.2d 509

211 Ind. 47

ROGERS v. STATE.

No. 26684.

Supreme Court of Indiana

January 13, 1937

Appeal from Clark Circuit Court; George C. Kopp, Judge.

T. Ernest Maholm, of Indianapolis, for appellant.

Philip Lutz, Jr., Atty. Gen., and Cabeb J. Lindsey, Asst. Atty Gen., for the State.

ROLL Judge.

Appellant was charged by a grand jury indictment with the crime of kidnapping. There was a trial by a jury which returned a verdict of guilty as charged. Judgment was entered upon the verdict, and appellant was sentenced to the Indiana State Prison for and during the period of his natural life. Appellant's motion for a new trial was overruled and he appealed. The motion for a new trial assigned reason therefor: (1) The verdict of the jury is contrary to law; (2) the verdict of the jury is not sustained by sufficient evidence; (3), (4), and (11) relate to admission of alleged incompetent evidence, and reasons 5 6, 7, 8, 9, and 10 relate to the giving and refusing instructions to the jury.

Appellant assigns as error the overruling of the petition of appellant's counsel for permission to consult with appellant before arraignment, plea and trial of appellant (2) that the court erred in proceeding to trial and return of verdict, and rendering judgment in the absence of any arraignment and plea of appellant; and (3) the overruling of his motion for a new trial.

Appellant in his brief does not question the correctness of the instructions, and nowhere discusses them under his points and authorities. He therefore has waived any question relating to the correctness of the court's instructions.

The first proposition stated by appellant in his brief relates to his first assignment of error, to wit: That the court erred in overruling the petition of appellant's counsel for permission to consult with appellant.

The record shows that the officers chased appellant before his arrest, and in his attempt to elude the officers appellant fell and broke one of his legs. He was taken to the hospital, and soon afterwards gangrene set in, and on June and 8th appellant's limb was amputated. He was confined in the hospital from about the middle of April until about the 8th day of July. After that until his trial, which began on September 16, 1935, appellant was confined in the Clark County Jail. Appellant's motion was filed on April 23, 1935, and was denied the same day. The record does not disclose why the court refused appellant's counsel permission to consult with his client, other than that the evidence does show that appellant was confined to the hospital and became very sick with gangrene. But the record as above stated shows that appellant after he was returned to the Clark County Jail had ample opportunity to consult with his attorneys before the trial in September, and made no objection to going to trial on the ground that he had had no opportunity to consult with his lawyers. The determination of this question was within the sound discretion of the trial court, and the record does not disclose an abuse of that discretion.

Appellant's second proposition relates to the fact that he was not arraigned and entered no plea. No objection was made by appellant to going to trial without arraignment or plea. He did not request...