Todd v. State
| Decision Date | 26 October 1948 |
| Docket Number | 28426. |
| Citation | 81 N.E.2d 784,226 Ind. 496 |
| Parties | TODD v. STATE. |
| Court | Indiana Supreme Court |
I dissent from the opinion in this case for the reason that I think the entire proceeding clearly demonstrates that the defendant has been denied his constitutional rights, and the judgment is therefore void. The record discloses the following proceedings: The intrinsic record of the trial court shows that the affidavit against appellant was filed in that court on September 22, 1947, at which time a warrant was issued for his arrest. On October 7, following, he was arraigned in open court, entered a plea of not guilty, his bond was fixed at $3000.00, and his trial date was fixed by the court for November 3, 1947. This was the first appearance of the appellant in the cause and this is all the record made in the cause on that date. No further record was made in the cause until November 3, 1947, when the following record was made, to-wit:
'The date of trial being at hand,--Comes also the state of Indiana by John M. Lewis, Prosecuting Attorney and announced ready for trial as to defendant, Ralph D. Todd, on first and second counts of affidavit; comes also the defendant, Ralph D. Todd in person and shows to the court that the elects to represent himself in this cause, without the aid of counsel, and requests a trial by jury and announces ready for trial.'
The record is silent as to whether defendant was free under a recognizance bond, or whether he had been in jail from the date of his arrest. However, if he had been under bond, the record would so show. Therefore, we may presume he was detained in jail awaiting trial. The record contains no copy of the showing, election and request which it says was made by defendant, and we are therefore compelled to indulge the presumption that something was said at that time on the subject of counsel for defendant and possibly about a continuance but it was wholly oral and no record was made thereof by the trial court.
On December 3, 1947, within the time provided by law attorneys O. B. Hanger and E. P. Elsner appeared for defendant, and filed a motion for new trial, which omitting caption and signature is as follows:
'The defendant, Ralph Todd, in the above entitled cause, shows to the Court that there are manifest irregularities and error in the proceedings, rulings of the Court, verdict of the jury and the judgment of the Court rendered thereon, in this cause, on November 3 1947, on each of the following grounds:
'1. That the verdict of the jury is contrary to law.
'2. That the verdict of the jury is contrary to the evidence.
'3. That the verdict of the jury is not supported by sufficient evidence.
'4. The Court committed prejudicial error in failing to grant defendant's request for a continuance or postponement of the trial of his case, on the grounds that his attorney had withdrawn his appearance; and that he needed additional time to employ counsel to represent him.
'5. The Court committed prejudicial error in permitting defendant's case to be tried to the jury without appointing an attorney to represent and defend said defendant during the aforesaid trial.
'6. The Court erred in permitting the trial of said defendant to proceed without representation of legal counsel.
'7. The Court erred in submitting defendant's case to the jury without first appointing an attorney to represent and defend said defendant.
'8. That said defendant was denied his constitutional rights by the Court's rulings in the proceedings, hereinbefore stated, made during the course of the trial of said defendant.
'Wherefore, defendant prays that a new trial of this cause be granted.
'Memorandum:
'Our Courts have further held that is reversible error for a Court to deny a motion for postponement or continuance of a trial, when an attorney of record withdraws his appearance, and another attorney is employed by the accused to represent him, but not in time for the second attorney to prepare proper defense for the accused.
The court then required appellant to file a brief in support of his motion for new trial on or before January 5, 1948. On January 5, 1948 an extensive brief with authorities was filed. At the same time and for the same reasons as given in the motion for new trial except causes 1, 2 and 3 thereof, a motion for a nunc pro tunc entry was filed and presented.
On January 12, 1948 attorney, O. B. Hanger, filed his own affidavit in support of the motion for new trial, which omitting caption, signature and verification is as follows:
'O. B. Hanger, being first duly sworn upon his oath, says:
'That he is one of the attorneys of record for said defendant in the above entitled cause; that he personally filed said defendant's motion for a new trial in open court with the Judge of said Jackson Circuit Court; that at the time he filed the aforesaid motion for a new trial, he inquired of the Judge of the Court whether or not said defendant, Ralph Todd, had requested, on the day of his trial, the Court to continue or postpone his case on the grounds said defendant did not have counsel employed to represent him and the Judge of the Court answered in the affirmative; the Court further informed him that he had overruled or denied said defendant's request, as aforesaid, on the grounds that said defendant had had ample time to employ counsel; that he further inquired of the Court, if said defendant did not ask or request the Court to appoint counsel to represent him and the Court again answered in the affirmative, but overruled or denied the request on the grounds that the Court did not intend for the taxpayers of Jackson County to employ counsel to represent said defendant.
'The foregoing statement is made for the purpose of showing that the Judge of the Jackson Circuit Court at all times had personal knowledge of defendant's requests and rulings that were made thereon, although said Court's records failed to disclose any such requests were made by said defendant in open Court, nor does its records show the Court's rulings that were made on said defendant's requests.
'Further affiant saith not.'
'On the same date the motion for nunc pro tunc entry and the motion for new trial were overruled.
The bill of exceptions shows that to prove the charge the prosecuting attorney produced eleven witnesses, whom he asked 307 questions. On cross-examination the defendant asked these witnesses 15 questions. The defendant made but one objection to a question during the trial, the reason given for the objection being meaningless, and the court overruled it. Had a proper reason been given the objection might have been sustained. At one time during the trial the prosecuting attorney (to his credit be it said) warned a witness against giving incompetent evidence against the defendant.
At the conclusion of the state's evidence the judge said: 'Mr. Todd, do you have any witnesses, or do you want to testify? Mr. Todd answered 'No Sir'. This statement, the 15 inane cross-examination questions, and a like inane objection constituted defendant's entire participation in his trial. So far as shown, defendant had no opportunity to examine the affidavit upon which he was being tried, and no opportunity to consult with or have witnesses subpoenaed in his defense. There is nothing indicating that appellant would have comprehended the meaning of the affidavit if he had seen it.
Confronted with this factual situation affirmatively shown by the record I am wholly unable to agree with statements in the opinion that 'we must presume that the trial court did its duty' and that prior to the trial it explained 'to the appellant that he was entitled to counsel throughout the proceedings * * * and if he was a pauper to offer, and if he so desired, to provide him with adequate counsel', in the absence of any showing whatever that any such explanation or offer was ever made. Where, as in this case, a simple and uneducated person is detained in jail without counsel either before or after plea or at his trial and is compelled to go to trial without any preparation whatever for his defense, he is thereby clearly denied his rights under both the state and federal constitutions. In such a situation the trial court is called upon sua sponte to see that the defendant has adequate and competent counsel, and that he and his counsel have ample time to prepare for the trial. On this proposition the record of the trial court is always open for inspection and...
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