Wartner v. State

Citation1 N.E. 65, 102 Ind. 51
Case DateMay 12, 1885
CourtSupreme Court of Indiana

102 Ind. 51
1 N.E. 65

Wartner
v.
State.

Supreme Court of Indiana.

Filed May 12, 1885.


Appeal from Jasper circuit court.


S. P. Thompson and F. W. Babcock, for appellant.

F. T. Hord, Atty. Gen., for the State.


Howk, J.

On the eighth day of January, 1885, an indictment containing three counts was duly returned into the court below, in each of which counts the appellant, Weibern Wartner, was properly charged with the commission of one and the same felony,-of murder in the first degree. Afterwards, at the same term, the appellant being in custody was brought into court, and, upon arraignment, for plea to the first count of the indictment said that he was guilty as therein charged. Thereafter, on the twenty-first day of January, 1885, it is shown by the record that “the court, having heard the evidence, and being sufficiently advised in the premises, finds the defendant guilty on his plea of guilty, heretofore entered herein, as charged in the first count of the indictment, and assesses his punishment at death.” Upon this finding and no other, on the same day, the court adjudged that the appellant, Wartner, should suffer the penalty of death, in the statutory mode, on the fifteenth day of May, 1885. It is very clear that the judgment of the court in this cause is wholly unauthorized by law, and must be set aside and reversed as an absolute nullity. Section 13 of the bill of rights, in the constitution of this state, provides as follows: “In all criminal prosecution the accused shall have the right to a public trial by an impartial jury in the county in which the offense shall have been committed,” etc. The appellant's right to a trial of this prosecution against him is his personal and constitutional right, which he cannot be deprived of, nor can he even waive such right unless such waiver is expressly authorized by statute. The appellant's case, as charged in each count in the indictment, is a capital case. In such a case there is not only no statutory authority for the defendant's waiver of his right to a trial by jury, but the statute declares that the trial thereof “must be by jury.” In section 1821, Rev. St. 1881, it is provided as follows: “The defendant and prosecuting attorney, with the assent of the court, may submit the trial to the court, except in capital cases. All other trials must be by jury.”

Under the section of the statute, it has been held by this court, and correctly so, we think, that the constitutional right of a defendant

[1 N.E...

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11 practice notes
  • Hollibaugh and Bunten v. Hehn
    • United States
    • United States State Supreme Court of Wyoming
    • March 20, 1905
    ...in the state penitentiary. The facts are stated in the opinion. Writ denied. Allen G. Fisher, for plaintiffs, cited Wartner v. State, 102 Ind. 51; Ex parte Carr, 22 Neb. 540; State v. Stephens, 71 Mo. 535; 6 Colo. 559; 7 id., 384; id., 502. POTTER, JUSTICE. BEARD, J., concurs. OPINION [79 P......
  • State v. Best, 1759
    • United States
    • United States State Supreme Court of Wyoming
    • July 21, 1932
    ...this case. The court should have refused to accept the plea of guilty and required the jury to try the case. 7501 C. S.; Wartner v. State, 1 N.E. 65. Since the jury fixes the punishment in first degree murder cases, it is questionable whether the right to jury trial may be waived. Sec. 7066......
  • State v. Williams, No. 28660.
    • United States
    • United States State Supreme Court of Missouri
    • May 25, 1928
    ...920; State v. Bell, 212 Mo. 130; Ex parte Meyers, 44 Mo. 279; State v. Jolly, 96 Mo. 435; State v. Buck, 120 Mo. 479; Wartner v. State, 102 Ind. 51; Green v. United States, 46 L.R.A. (N.S.) 1119; Batchelor v. State, 189 Ind. 69; State v. Wurdeman (Mo.), 246 S.W. North T. Genlry, Attorney-Ge......
  • Commonwealth v. Hall, 48
    • United States
    • Commonwealth Court of Pennsylvania
    • July 1, 1926
    ..." trials must be by jury." Under this, it has held that not even a plea of guilty can be addressed to the court alone: Wartner v. State, 102 Ind. 51. In some of the states provisions have been put in the Constitution expressly permitting a waiver of jury trial in criminal cases. See Chief J......
  • Request a trial to view additional results
11 cases
  • Hollibaugh and Bunten v. Hehn
    • United States
    • United States State Supreme Court of Wyoming
    • March 20, 1905
    ...in the state penitentiary. The facts are stated in the opinion. Writ denied. Allen G. Fisher, for plaintiffs, cited Wartner v. State, 102 Ind. 51; Ex parte Carr, 22 Neb. 540; State v. Stephens, 71 Mo. 535; 6 Colo. 559; 7 id., 384; id., 502. POTTER, JUSTICE. BEARD, J., concurs. OPINION [79 P......
  • State v. Best, 1759
    • United States
    • United States State Supreme Court of Wyoming
    • July 21, 1932
    ...this case. The court should have refused to accept the plea of guilty and required the jury to try the case. 7501 C. S.; Wartner v. State, 1 N.E. 65. Since the jury fixes the punishment in first degree murder cases, it is questionable whether the right to jury trial may be waived. Sec. 7066......
  • State v. Williams, No. 28660.
    • United States
    • United States State Supreme Court of Missouri
    • May 25, 1928
    ...920; State v. Bell, 212 Mo. 130; Ex parte Meyers, 44 Mo. 279; State v. Jolly, 96 Mo. 435; State v. Buck, 120 Mo. 479; Wartner v. State, 102 Ind. 51; Green v. United States, 46 L.R.A. (N.S.) 1119; Batchelor v. State, 189 Ind. 69; State v. Wurdeman (Mo.), 246 S.W. North T. Genlry, Attorney-Ge......
  • Commonwealth v. Hall, 48
    • United States
    • Commonwealth Court of Pennsylvania
    • July 1, 1926
    ..." trials must be by jury." Under this, it has held that not even a plea of guilty can be addressed to the court alone: Wartner v. State, 102 Ind. 51. In some of the states provisions have been put in the Constitution expressly permitting a waiver of jury trial in criminal cases. See Chief J......
  • Request a trial to view additional results

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