Schmidt v. State
| Decision Date | 09 April 1973 |
| Docket Number | No. 1--972A66,1--972A66 |
| Citation | 294 N.E.2d 638,156 Ind.App. 1 |
| Parties | Robert SCHMIDT, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Charles W. Symmes, James H. Voyles, Symmes, Fleming, Ober & Symmes, Larry J. Wallace, Indianapolis, for defendant-appellant.
Theodore L. Sendak, Atty. Gen. of Indiana, Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Defendant-appellant (Schmidt) was convicted by a jury of theft by deception and sentenced accordingly by the Hancock Circuit Court. A motion to correct errors was thereafter filed on behalf of Schmidt and subsequently overruled, from which ruling he brings this appeal. Schmidt's claim of error on appeal is directed primarily to the propriety of the trial court's action in granting the State a jury trial over Schmidt's objection, and to the sufficiency of the evidence.
It is contended in regard to the first issue that Schmidt was denied a fair trial and that the court abused its discretion in overruling his objection to a jury trial. Prior to a change of venue from the Marion County Criminal Court, the State and Schmidt waived trial by jury and agreed upon a trial to the court. Upon learning that the Hancock Circuit Court had set the cause for trial by a jury, Schmidt objected in writing on the basis of the previous waiver agreement. The court overruled the objection and submitted the cause to a trial by jury which it is now alleged by Schmidt was prejudicial to him and constituted reversible error. Schmidt's claim of prejudice is based, for the most part, on the argument that a jury would be unduly sympathetic toward an elderly woman as the chief prosecuting witness in a case of this nature.
IC 35--1--34--1, Ind.Ann.Stat. § 9--1803 (Burns 1956) provides all trials to be before a jury unless the defendant and prosecuting attorney, with the assent of the court, may try the cause to the court without a jury. We are of the opinion that the change of venue to another court would vitiate any prior waiver of a jury trial for the statute expressly requires the trial judge to join in any such agreement to a bench trial. It was further determined in Allredge v. State (1959), 239 Ind. 256, 156 N.E.2d 888, that a defendant has a right to a jury trial but he does not have a corresponding right to be tried without a jury. We find no error in the use of a jury in the instant case.
In view of the language of the statute Schmidt's citation of authority saying that a withdrawal of such a waiver must be seasonably made is not applicable.
Prior to dismissing the sufficiency of the evidence, we are compelled to restate the oft-cited proposition in criminal appeals that we will not weigh the evidence nor resolve the questions of credibility, but will look to the evidence most favorable to the State and the reasonable inferences therefrom which support the verdict of the jury. Washington v. State (1971), Ind., 271 N.E.2d 888, and Davis v. State (1971), Ind., 271 N.E.2d 893. A conviction must be affirmed if, having applied the rule, there is evidence of probative value from which the jury could reasonably infer that the defendant was guilty beyond a reasonable doubt. Gann v. State (1971), Ind., 269 N.E.2d 381.
The substance of Schmidt's argument relating to the sufficiency of the evidence is that the verdict of the jury is contrary to law and not supported by sufficient evidence upon all the necessary elements to sustain a charge of theft by deception under IC 35--17--5--3, Ind.Ann.Stat. § 10--3030 (Burns 1956).
The evidence, briefly summarized, shows that Schmidt, who operated and partly owned a business in Indianapolis known as American Maintenance Company, visited the home of Marguerite Mahoney, a 74 year old retired school teacher who had contacted Schmidt concerning repair work on her roof. During the visit, Schmidt informed Miss Mahoney that the electrical wiring in her attic was defective and presented a serious fire hazard. He also stated that she needed a new circuit box in the basement which he estimated would cost around $800. Miss Mahoney agreed to have the recommended work done by Schmidt's company. The work was performed primarily by a Charles 'Chuck' Dow, who was an employee or sub-contractor of American Maintenance. Neither Schmidt nor Dow was licensed to perform electrical work. Upon completion of the job Schmidt presented Miss Mahoney with an itemized bill of $3,218 less $500 which was paid in advance. Included in the bill were a circuit box, 672 feet of wiring, two boxes...
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Beech v. State
...possible to infer intent and knowledge from the facts presented at trial, Capps v. State (1972), Ind., 282 N.E.2d 833; Schmidt v. State (1973), Ind.App., 294 N.E.2d 638; and from the totality of the circumstances presented in each case, Tuggle v. State (1969), 253 Ind. 279, 252 N.E.2d At tr......
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Pappas v. State, 2-1277A448
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Woodward v. State
...waiver of a jury trial and that a prior waiver is vitiated if the case is subject to a change of venue. See Schmidt v. State, 156 Ind.App. 1, 2-3, 294 N.E.2d 638, 638-39 (1973) (construing Ind.Code § 35-1-34-1). In Schmidt, the defendant was charged in Marion County Criminal Court with thef......
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Woodard v. State
...waiver of a jury trial and that a prior waiver is vitiated if the case is subject to a change of venue. See Schmidt v. State, 156 Ind. App. 1, 2-3, 294 N.E.2d 638, 638-39 (1973) (construing Ind. Code 35-1-34-1). In Schmidt, the defendant was charged in Marion County Criminal Court with thef......