Todd v. State

• Citation: 81 N.E.2d 530,226 Ind. 496
• Decision Date: 07 October 1948
• Docket Number: 28426.
• Parties: TODD v. STATE.
• Court: Indiana Supreme Court

81 N.E.2d 530

226 Ind. 496

TODD v. STATE.

No. 28426.

Supreme Court of Indiana

October 7, 1948

Rehearing Denied Nov. 9, 1948.

Appeal from Jackson Circuit Court; George H Gossman, Judge.

Edward P. Elsner, of Seymour, O. B. Hanger and C. A. Huff, both of Indianapolis, and Ralph D. Todd, of Michigan City, for appellant.

Cleon H. Foust, Atty. Gen., Frank E. Coughlin, First Deputy Atty Gen., and Merl M. Wall, Deputy Atty. Gen., all of Indianapolis, for appellee.

STARR Judge.

The appellant, Ralph D. Todd, was prosecuted by affidavit in two counts; the first count charged automobile banditry; the second count uttering a forged instrument. The second count grew out of the same transaction involved in the first count. To this affidavit the appellant plead not guilty. The trial was had before a jury which resulted in a verdict of guilty on each count; that he be imprisoned for ten years on the first count, and fined in the sum of ten dollars on the second count. The jury found that appellant was thirty-six years of age. Thereupon, the trial court sentenced the appellant on the first count to be imprisoned in the Indiana State Prison for a term of ten years, and on the second count imprisoned for not less than two or more than fourteen years and fined ten dollars and costs, and ordered that said sentences should be served concurrently. It is from this judgment this appeal is taken.

The record discloses that on October 7, 1947, the appellant was arraigned and plead not guilty; that at that time the cause was set for trial for November 3, 1947. The record further discloses that on said last mentioned date the appellee, by the prosecuting attorney, answered in open court that it was ready for trial; that the appellant also at said time appeared in person and elected to represent himself himself in this case without the aid of counsel, and requested a trial by jury and announced that he was ready for trial. Thereupon, a jury was impaneled and the cause submitted for trial which resulted in the verdict and sentence as above indicated.

On December 3, 1947, appellant filed his motion for a new trial and assigned as causes therefor, that the verdict was contrary to law; that the verdict was not supported by sufficient evidence, and that the appellant was prevented from having a fair trial by the following errors of the court, overruling the appellant's motion for a continuance and postponement of his trial; and finally, in permitting appellant's case to be tried without appointing an attorney to represent and defend him.

On January 12, 1948, as shown by appellant's bill of exceptions No. 2, the appellant filed the affidavit of one of his attorneys, Mr. O. B. Hanger, in support of his motion for a new trial. The substance of this affidavit is that this attorney filed the appellant's motion for a new trial, and at the time he so filed the same, he inquired of the trial judge whether or not said appellant had requested a continuance or postponement of his case on the day of his trial, on the grounds that the appellant did not have counsel employed to represent him, and thereupon, said judge had answered in the affirmative, and further informed the affiant that he had overruled and denied said request on the grounds that the appellant had had ample time to employ counsel; that he further inquired of the court at said time, whether the appellant had requested the court to appoint counsel to represent him, and the court again answered in the affirmative, and stated that he had 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'; and finally, that the court's record failed to show such requests so made by appellant in open court of the court's rulings that were made on said requests.

Before the motion for a new trial was ruled on, the appellant filed his written motion for a nunc pro tunc entry showing that the appellant on trial day had moved for a continuance and also for the appointment of an attorney to represent and defend him as a poor person and the ruling on each request denying the same. This motion was not verified and no evidence was offered by appellant in support of it. The record discloses that this motion was overruled and then the motion for a new trial was also overruled.

The only alleged errors properly assigned by appellant are the overruling of his motion for a new trial, and the overruling of his said motion for a nunc pro tunc entry which we will consider in their order.

Appellant contends the the verdict is contrary to law for the reason that the jury attempted to assess his punishment on the second count by a fine in the sum of ten dollars. He has failed to raise any question on this proposition for the reason that he did not object to the verdict at the time it was returned by the jury, nor did he, nor could he, under these circumstances, move for a venire de novo.

Limeberry v. State, 1945, 223 Ind. 622, 63 N.E.2d 697. Nor has he made any motion to modify the judgment herein as was the procedure in the case last above cited. Due to the importance of this case, however, we desire to point out that it was not the duty of the jury to assess the punishment on this count as § 10-2102, Burns' 1933, 1942 Replacement, being the statute defining the offense of which he is charged in this count, fixes the punishment therefor by an indeterminate sentence. Under these circumstances it is the court and not the jury which pronounces the sentence, § 9-1821, Burns' 1933, 1942 Replacement, and the judge fixes not only the punishment as to imprisonment, but all other punishment as prescribed by this section of the criminal code for the violation of which the defendant is charged. Frey v. State, 1925, 196 Ind. 359, 147 N.E. 279. It is true the last case...