Wilson v. State
| Citation | 51 N.E.2d 848,222 Ind. 63 |
| Decision Date | 21 December 1943 |
| Docket Number | 27874. |
| Parties | WILSON v. STATE. |
| Court | Supreme Court of Indiana |
Appeal from Vanderburgh Circuit Court.
Theodore Lockyear, of Evansville, for appellant.
James A. Emmert, Atty. Gen., Frank Hamilton, First Asst. Atty Gen., and Frank
E Coughlin, Deputy Atty. Gen., for appellee.
Appellant was convicted by a jury of the offense of receiving and concealing stolen goods of value less than $25. He was given a small fine and sentenced for an indeterminate term of one to five years. After motion for new trial had been filed, and too late for amendment thereof, his present counsel as 'public defender' was appointed and prosecutes this appeal at the expense of the county. He frankly states that the errors upon which he relies are not presented in the motion for new trial, the overruling of which is the only error assigned, but earnestly insists that on account of prejudicial statements of the trial judge, invading the province of the jury, to which no objection was made by the lawyer who purported to represent appellant during the trial, the appellant's substantial rights were so violated that regardless of procedural requirements with respect to saving and presenting errors we should reverse the judgment. His position may be summarized by the statement that appellant was deprived of fundamental rights guaranteed by our Constitution in that he had merely a perfunctory representation by counsel in a trial before a judge who was not impartial but stepped out of his proper role on several occasions to assist in the prosecution and to convey to the jury his opinion that the appellant was not worthy of belief. The Attorney General, whose duty it is to represent the state in criminal appeals, answers that the questions are not properly presented and that the evidence is sufficient to sustain the verdict. He also adds a history, developed on cross-examination of appellant, of seven previous convictions of various crimes including assault and battery, driving an automobile while intoxicated, burglary, arson and adultery, which evidence appellant failed to recite in that part of his brief entitled 'Statement of the Record.' The Attorney General will doubtless concede that a defendant with a long criminal record is just as much entitled to a fair trial as a person brought into court for the first time to answer a criminal charge. Our concern therefore is not with the extent of his criminal career but with the record of the trial resulting in the judgment from which this appeal is taken. Upon examination of that record we find that his present counsel has called our attention to only the flagrant errors and that many irregularities occurred which are not referred to in the brief.
When appellant was arraigned December 29th, 1941, he was represented by the then 'public defender,' sometimes known as 'pauper attorney.' His bond was fixed at $1,000 and trial set for January 7, 1942. On the 8th of January the bond was reduced to $500. On the 23rd it was increased to $1,000, a warrant was ordered and trial set for January 28th on which day his bond was declared forfeited because of his failure to appear. It is disclosed by the evidence that he went to California and was extradited. Apparently he left before the 23rd and the date of trial was set with knowledge that he could not appear. The next entry was made July 2, 1942, when another lawyer entered his appearance and filed motion and affidavit for a change of venue from the regular judge. A few days later the bond was raised to $2000, the motion for change of venue was sustained and a judge was selected and qualified. On the 24th of August the forfeiture of the bond was set aside and the surety released. A few days later the lawyer withdrew his appearance with the consent of the court. It appears from the evidence that he was paid $30 by appellant. The cause was finally tried on October 13, 1942, and then for the first time John L. Roberts, the attorney who purported to represent him during the trial, entered his appearance. The trial was begun, completed and verdict returned in one day. On the 15th of October appellant appeared accompanied by Mr. Roberts and was sentenced. A motion for new trial was filed November 12th. Obviously it was prepared by a layman or by a lawyer who was ignorant of the requirements of a motion for new trial. It states that the appellant 'in propria persona' makes the motion and it is signed by him. At the same time he filed a motion, also signed by him, to prosecute an appeal as a poor person. After the filing thereof the public defender who had appeared at the time of appellant's arraignment was again appointed as his attorney but there is no record of anything done by him. January 7, 1943, appellant's present counsel was appointed by the court. Obviously he had no opportunity of knowing what had occurred during the trial except from hearsay unless he had procured a transcript of the evidence, which does not appear. What was said in oral argument of the motion for new trial is not revealed. After it was overruled present counsel procured bills of exceptions containing the evidence and the instructions which are properly in the record.
In making its case the state presented five witnesses, in order as follows: Ralph I. Smith, an officer of Service Glass Company from whom the goods were alleged to have been stolen, a policeman who without search warrant went to appellant's house in his absence and obtained the goods, a policeman who went to California to extradite appellant, a deputy clerk of the court who identified records showing declaration of forfeiture of the bond which record was introduced without objection, and Ernest Martin who testified that he stole the specific items of merchandise from his employer, Service Glass Company, and sold them to appellant for small amounts. Martin had pleaded guilty, sentence was withheld, and he was released on $100 bond with Mr. Smith as surety. Appellant testified and called two other witnesses, a bookkeeper of the company who had been subpoenaed to bring books and records showing all of appellant's transactions with the Glass Company but who was excused without testifying when it appeared that she had not brought the books and records but merely a statement of what she had found with respect to appellant's transactions with the company during the year 1941, and a second witness whose testimony was worthless since it appeared he knew nothing about the transactions. Appellant, while on the stand, stated that 'Jess' Martin was supposed to have been subpoenaed before the trial but he was not present. Mr. Roberts evidently made no effort before the trial began to ascertain whether or not the bookkeeper had brought the records which she was subpoenaed to produce. Either he failed to carry out appellant's instructions to subpoena Martin or he neglected to ascertain that the subpoena had been disobeyed or he was content to proceed in Martin's absence. After the prosecuting attorney had completed his cross-examination of appellant, toward the end of which his previous criminal record had been brought to the attention of the jury and admitted by appellant, the judge examined appellant as follows:
'
'
'By the Court: That's all.'
Another witness was then examined, after which the judge said: 'Show that the Court at this time permits the defendant to adjourn for two hours, in which to secure additional evidence which he contends he can offer at that time.' Following the recess the judge said:
Appellant was then put on the witness stand and examined by the judge. He testified that 'Jess' Martin was supervisor of a laundry company whose automobiles appellant had repaired and that for the purpose of making the repairs he had received from this company some of the goods which it was alleged had been...
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