Wright v. State, 868S129
Decision Date | 07 July 1969 |
Docket Number | No. 868S129,868S129 |
Citation | 249 N.E.2d 33,252 Ind. 418 |
Parties | Robert D. WRIGHT, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Robert G. Mann, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Curtis C. Plopper, Aaron T. Jahr, Deputy Attys. Gen., for appellee.
Appellant was tried and convicted of first degree arson on October 19, 1967. On March 7, 1968 the trial court granted appellant's petition for permission to file a belated motion for a new trial. The belated motion for a new trial was then filed and claimed that the defendant did not have a fair trial for the following reasons: that he was forced into a trial without any opportunity to confer with his court-appointed counsel and without any time to secure witnesses in his defense. There are also other allegations with reference to the claim that the evidence was insufficient for a conviction, to which we need not give any consideration.
At the hearing on the belated motion for a new trial the evidence was uncontradicted that the appellant was under a charge of assault and battery and carrying a deadly weapon and also under the present charge of arson. After his counsel was appointed by the court the appellant testified that the following took place:
'Q. Alright and then what happened?
'A. Well, he (the trial attorney) said I'll talk to you later, I'll come over and talk to you about it and I waited until October 19 and he never did come back, so the day of the trial he came back in the cell block back there. (Parenthesis added.)
'Q. That's the lock up here in the court room?
'A. Yes, and he said are you ready to go to trial and I said 'On the assault and battery and drawing a deadly weapon, I am, because I had my witnesses, Bill Morris and Burger Johnson.'
'Q. Now, you stated you were ready for trial on the appeal cases from Municipal Court?
'A. Yes.
'Q. Assault and battery and concealing a weapon?
'A. Yes, because I asked him * * * I told him to get a continuance on the arson until I can get my witnesses to establish where I was at that night and he said, 'Well, let me talk to Bill Synder,' who Bill Synder is I don't know.
'Q. The prosecuting attorney, is that who he is referring to?
'A. Well, I assumed that's who it might be, anyway he came back and said 'alright, we'll take care of half of it' and he brought me out of the courtroom told me * * * pointed to me to take a seat and him and the prosecutor got up and walked up in front of the Judge and they talked, what they talked about I didn't know and he come back and sit down and then summoned Laura Miles.
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'Mr. Conner: No questions.
'Mr. Mann: Nothing further, Your Honor.
There was no evidence offered by the state to contradict this testimony. The state did not see fit to call the court-appointed counsel of the defendant to in any fashion contradict the facts the defendant related. It appears therefore from the uncontradicted evidence in the record that the appellant was forced into a trial as a surprise, without warning and without an opportunity to consult his attorney, and his attorney failed to procure witnesses for his defense. It is quite evident from this uncontradicted evidence that regardless of the guilt or innocence of the appellant, he did not receive a fair trial.
It is to be regretted that the state did not see fit to call counsel appointed to represent the defendant to rebut the charges of incompetency and neglect in the representation of the appellant. The attorney involved here should have had the opportunity to refute the charges. We have held in this state that an attorney may intervene in an action in which he is charged with personal misconduct to protect his reputation and any reflection upon his integrity. Dodd v. Reese (1939), 216 Ind. 449, 24 N.E.2d 995, 128 A.L.R. 574.
We have said previously that we need not, in a case...
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Smith v. State, 1--276A12
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Shelby v. Phend
...Court Rule 2-40 at the time he filed his petition, which is still available under new Supreme Court Rule P.C. 1. See Wright v. State, 249 N.E.2d 33 (Ind.Sup.Ct.1969); Shack v. State, 249 Ind. 60, 206 N.E.2d 614 (1967); Hayden v. State, 245 Ind. 591, 199 N.E.2d 102, 201 N.E.2d 329 (1964); Mc......
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