Tokacs v. State
| Decision Date | 18 November 1930 |
| Docket Number | 25,724 |
| Citation | 173 N.E. 453,202 Ind. 259 |
| Parties | Tokacs v. State of Indiana |
| Court | Indiana Supreme Court |
From Porter Circuit Court; Grant Crumpacker, Judge.
James Tokacs was convicted of second-degree murder, and he appealed.
Affirmed.
Ira M Holmes and John P. Crumpacker, for appellant.
James M. Ogden, Attorney-General, George W. Hufsmith and E. Burke Walker, Deputy Attorney-Generals, for the State.
On change of venue from the criminal court of Lake County appellant, in the Porter Circuit Court, was tried and convicted of murder in the second degree. Judgment and sentence for life followed his conviction. In this court, he assigns as errors the overruling of his motion in arrest of judgment, his motion for a new trial, and that the court erred in assuming jurisdiction over the subject-matter and of the person of appellant.
We will first notice the jurisdictional question. This question is sought to be presented not only by an independent assignment of error, but by his motion in arrest of judgment and by his motion for a new trial. In this jurisdiction, a judgment upon a conviction in a prosecution by the State for an alleged offense may be arrested only when it appears: (1) "That the grand jury which found the indictment had no legal authority to inquire into the offense charged, for the reason that such offense was not within the jurisdiction of the court"; and (2) that "the facts stated in the indictment or affidavit do not constitute a public offense." Acts 1925 p. 490, § 2326 Burns 1926. The grounds upon which appellant predicates his motion in arrest are stated in 11 paragraphs, the substance of which is that appellant was tried without being arraigned or pleading to the indictment, nor did the court enter a plea of not guilty for him (§§ 2332, 2333 Burns 1926); that the record of the court below failed to show that the indictment or the original papers in the criminal court of Lake County were by the sheriff of that county transferred in a sealed package, and deposited in the clerk's office of the Porter Circuit Court; that the transcript of the criminal court of Lake County fails to show that the grand jury of that county returned an indictment against appellant; nor does the transcript show that the indictment charging appellant with murder in the first degree was ordered transmitted to the Porter Circuit Court. The reasons thus assigned for arresting the judgment are not within the causes provided by statute, nor do they furnish the basis for independent assignments of error, but are properly questions which may be presented by a motion for a new trial. § 2325 Burns 1926, clauses 1 and 9; Andrews v. State (1925), 196 Ind. 12, 146 N.E. 817; Sabo v. State (1926), 197 Ind. 210, 150 N.E. 103; Koscielski v. State (1927), 199 Ind. 546, 158 N.E. 902.
Looking to the alleged error of the court in overruling appellant's motion for a new trial, we find several causes upon which appellant seems to rely. The alleged failure of arraignment and plea is presented under the cause that verdict is contrary to law. Prior to the time of taking effect of Acts 1927 p. 411, ch. 132, § 9, Acts 1905 p. 584, § 197, the failure of a defendant to enter a plea to an indictment or affidavit, or if he stand mute and no plea is entered for him by the court, was a sufficient showing requiring the court to grant a new trial; but the act of 1927 changed the law by providing that: "Any conviction shall not be invalidated by failure of the record to show an arraignment and plea or either of them, unless the record shall show that the defendant before the trial objected to entering upon the trial for lack of such arraignment or plea." There is no showing in the record at bar that the defendant objected to a trial without being arraigned or pleading to the indictment. Hence, appellant's contention based on want of a plea is not well taken. Lee v. State (1929), 90 Ind.App. 43, 167 N.E. 543.
It is next insisted that there is no record showing that the original indictment, original papers, and a transcript of the proceedings and orders of the court of original jurisdiction were filed in the Porter Circuit Court. The record, as originally filed here, and supplemented by the clerk's return to a certiorari issued by this court, shows that a grand jury impaneled in the criminal court of Lake County, October 24, 1927, returned into that court an indictment charging appellant with the crime of murder in the first degree, alleged to have been committed on October 7, 1927, in Lake County. Upon appellant's application, the criminal court of Lake County ordered that the venue of the cause be changed to the Porter Circuit Court, and that the sheriff of Lake County transfer and deliver the defendant to the sheriff of Porter County, together with a certified copy of its order. It also appears from the certificate of the clerk of the criminal court of Lake County that he made a transcript of the proceedings and orders of that court in this cause, which transcript included a copy of the indictment, and, from an order-book entry of the trial court under date of December 2, 1927, it affirmatively appears that the original indictment and transcript of the proceedings in the criminal court of Lake County, together with other papers in the cause, were filed in the office of the clerk of the Porter Circuit Court. This court, in appealed causes, indulges the presumption of regularity and validity of the proceedings of the trial court, and, unless irregularity or invalidity of the proceedings below are affirmatively shown by the record on appeal to be harmful to the appealing party, the judgment below will not be disturbed. Duncan v. State (1882), 84 Ind. 204; O'Brien v. State (1890), 125 Ind. 38, 25 N.E. 137, 9 L.R.A. 323; Rinkard v. State (1901), 157 Ind. 534, 539, 62 N.E. 14; Katzen v. State (1922), 192 Ind. 476, 137 N.E. 29. While it does not appear from the record that the sheriff of Lake County transmitted the indictment with the original papers and transcript in a sealed package and deposited the same with the clerk of Porter Circuit Court, yet the showing as to the action taken in the two mentioned courts respecting the various steps relative to the challenged jurisdiction of the Porter Circuit Court, supplemented by the presumption that the officers did their several duties in compliance with § 2239 Burns 1926, are facts sufficient to meet the requirements of the law giving the Porter Circuit Court jurisdiction of the subject-matter and of the person of the defendant.
Appellant claims error of the court in refusing to give his tendered instructions Nos. 1, 2 and 3, and in giving of its own motion instruction No. 18. That appellant fired the shot that killed Albert Creske is not questioned but it is claimed that the killing was done in self-defense. Instruction No. 1 tendered by appellant and No. 18 given by the court differ only in the concluding paragraphs. The one tendered used the following language: "Ordinarily, one exercising the right of self-defense is required to act upon the instant and without time to deliberate and investigate, and under...
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