Schuchman v. State, 30855

• Decision Date: 16 May 1968
• Docket Number: No. 30855,30855
• Citation: 250 Ind. 408,236 N.E.2d 830
• Parties: Abe SCHUCHMAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 830

236 N.E.2d 830

250 Ind. 408

Abe SCHUCHMAN, Appellant, v. STATE of Indiana, Appellee.

No. 30855.

Supreme Court of Indiana.

May 16, 1968.

Ferdinand Samper, Forrest Bowman, Jr., Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Raymond I. Klagiss, Richard Bennett, Deputy Attys. Gen., for appellee.

JACKSON, Judge.

Appellant and a co-defendant, Jerry Allen Hostettler, were charged by indictment with the crime of abortion. The defendants entered pleas of not guilty. Trial was to a jury resulting in the conviction of the defendants.

The indictment, omitting formal parts reads as follows, to-wit:

'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that ABE SCHUCHMAN, JERRY ALLEN HOSTETTLER on or about the 26th day of March, A.D.1964, at and in the County of Marion and in the State of Indiana, did then and there unlawfully, feloniously and wilfully employ, use and suggest, direct and advise the use in and upon the body and womb of BEATRICE MC PHERON, a pregnant woman, as the said ABE SCHUCHMAN and JERRY ALLEN HOSTETTLER then and there well knew, a certain unknown instrument, with intent then and there and thereby to produce, procure and cause the miscarriage of the said BEATRICE MC PHERON, it not being necessary to cause said miscarriage to preserve the life of the said BEATRICE MC PHERON, in consequence of which the said BEATRICE MC PHERON then and there and thereby miscarried, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

Appellant herein filed a motion for a separate trial which was denied by the trial court. The cause was set for trial by jury at 10:00 a.m. on May 24, 1965.

Thereafter, on May 24, 1965, appellant filed in the trial court a notice of removal and a file marked copy of a petition for removal together with certain exhibits attached thereto. The notice of removal and petition for removal appear as follows:

'NOTICE OF REMOVAL

'TO THE PLAINTIFF IN THE ABOVE ENTITLED CAUSE:

You are hereby notified that Abe Schuchman, defendant in the cause of action designated as:

State of Indiana v. Abe Schuchman, Cause No. CR64--45, has filed the 24th day of May, 1965, in the United States District Court, Southern District of Indiana, Indianapolis Division, the Petition for Removal, attached hereto.'

'PETITION FOR REMOVAL

Comes now the petitioner, Abe Schuchman, and respectfully shows the court:

1. That he is the defendant in a certain cause of action now pending in the Criminal Court of Marion County, Indiana, Division One, being Cause No. CR64--45, which cause of action is a criminal case. That said cause is pending within the Indianapolis Division of the Southern District of Indiana.

2. That he is a resident of and citizen of the State of California. That he has been denied and cannot enforce in the courts of the State of Indiana his rights of equal protection of the law as guaranteed by the Fourteenth Amendment to the Indianapolis, Indiana, in Cause No. CR 64--45, right to counsel as guaranteed by the Sixth Amendment to the Constitution of the United States, by reason of the facts set out in Exhibit B, attached hereto. That the aforesaid denial of rights has occurred and is threatened in this cause.

WHEREFORE, petitioner prays that this cause be removed to this court, and for all further and proper relief in the premises.'

The entry of remand of the United States District Court for the Southern District of Indiana, Indianapolis Division, omitting caption and formal parts, reads as follows:

'This cause came before the Court upon the defendant's petition for removal of a criminal action now pending in the Marion Criminal Court, Division No. 1, Indianapolis, Indiana, in Cause No. CR64--65, to this Court.

The Court having considered the petition for removal and being fully advised in the premises hereby DENIES the petition for removal.

The petitioner contends that he has been denied and cannot enforce in the courts of the State of Indiana his rights of equal protection of the law as guaranteed by the Fourteenth Amendment and his right to counsel as guaranteed by the Sixth Amendment of the Constitution of the United States. Petitioner further contends that denial of the above rights result from a denial of the state court trial judge to grant petitioner a continuance in Cause No. CR 64--45. The grounds stated in the petition for removal are not within the purview of sections 1441 and 1443 of Title 28, United States Code.

'If a state trial court permits an infringement of a person's constitutional rights, that person may seek relief on appeal to the higher courts of the state with ultimate review, if necessary, by the United States Supreme Court.

IT IS THEREFORE ORDERED that this cause be and the same hereby is REMANDED to the Marion Criminal Court, Division No. 1. It is further ordered that the Clerk of this Court mail a copy of this order of remand to the clerk of the Marion Criminal Court, Division No. 1, for further proceedings.'

The State presented its evidence in chief, in part, on May 24, 1965, and concluded its evidence in chief on May 25, 1965. At the conclusion of the State's evidence each of the defendants orally moved for a discharge, which was overruled by the court.

Defendant-appellant presented his evidence in chief and rested May 25, 1965. The State submitted no rebuttal evidence.

Thereupon the court instructed the jury which retired for deliberation and verdict. The jury returned its verdict on May 25, 1965. The verdict reads as follows:

'We, the Jury, find the defendant guilty of the crime of Abortion and that he shall be fined in the sum of $100.00 dollars.'

The court ordered a Pre-sentence Investigation as to each defendant. The Presentence Investigation was filed and on June 18, 1965, appellant was sentenced as follows:

'IT IS THEREFORE ORDERED ADJUDGED AND DECREED by the Court that the Defendant Schuchman being found guilty as charged by a Jury is now sentenced to the Indiana State Prison for a period of not less than three (3) years nor more than fourteen (14) years and fines him in the sum of one hundred ($100.00) dollars and costs. Defendant Schuchman is of true age forty two (42) years.'

On June 18, 1965, appellant filed his motion for a new trial, such motion contains thirty-four (34) grounds and used twenty-three pages of record. Appellant did not waive any of the grounds in his motion for new trial, but we deem it unnecessary to give consideration to any of the grounds other than those set out at paragraphs 22 and 23 of appellant's motion, which read as follows:

'22. Irregularity in the proceedings of the Court by which the defendant was prevented from having a fair trial as follows, to-wit:

The Court purported to conduct a trial of this cause at a time when exclusive jurisdiction of this cause was vested in the United States District Court for the Southern District of Indiana, Indianapolis Division.

23. Error of law occurring at the trial as follows, to-wit: The trial of this cause was conducted at a time when exclusive jurisdiction of this cause was vested in the United States District Court for the Southern District of Indiana, Indianapolis Division.'

Appellant's Assignment of Errors contains two specifications as follows:

'1. The Court erred in overruling appellant's Motion For New Trial.

2. The Court erred in conducting the trial of this cause at a time when jurisdiction of this cause was vested exclusively in the United States District Court for the Southern District of Indiana, Indianapolis Division.'

The record herein clearly shows that on the morning of May 24, 1965, prior to the trial of this cause in the court below, appellant had filed with the United States District Court for the Southern District of Indiana, Indianapolis Division, his petition for removal of said cause. The record further shows that the clerk of the trial court received from appellant a file-marked copy of the removal petition, but failed or refused to file it. The record shows that appellant served a copy of the removal petition upon the State of Indiana by its Deputy Prosecuting Attorney. Finally, the special bill of exceptions shows that appellant then brought the matter to the attention of the trial judge by filing with him, in open court, and in the presence of the Deputy Prosecuting Attorney, an additional file marked copy of the removal petition.

The removal of a criminal case to a Federal Court is regulated by Federal Statute, as it appears in 28 U.S.C.A. § 1443, et seq.

' § 1443. Civil rights cases

Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the the jurisdiction thereof;

(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.'

' § 1446. Procedure for removal

(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.

(c) The petition for removal of a criminal prosecution may be filed at any time before trial.

(e) Promptly after the filing of such petition and bond...