Wright v. State

Decision Date25 November 1970
Docket NumberNo. 1069S255,1069S255
PartiesWilliam WRIGHT, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Hall Cochrane, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Kenneth M. McDermott, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Judge.

Appellant was charged by indictment containing three counts, Count 1 rape, Count 2 incest and Count 3 sodomy. The appellant first appeared before the court and tendered a plea of guilty to the third count in the indictment. Upon presentation of evidence at the hearing on the guilty plea the appellant stated to the court that the statements of the witnesses were untrue. The court therefore refused to accept the plea of guilty and ordered the appellant tried as charged. Trial was had without a jury before the same judge who had conducted the hearing on the tendered plea of guilty. Trial resulted in a finding of guilty as to Count 3 in the indictment and appellant was therefore sentenced to the Indiana State Prison for not less two nor more than fourteen years.

The facts as disclosed by the record are as follows:

The defendant's fourteen year old stepdaughter testified that on the date in question she entered an unstairs bedroom in their home where she saw her nine year old half-sister and her stepfather committing an act of sodomy. The nine year old daughter of the appellant testified that her father had ordered her to go upstairs to clean her room; that he followed her upstairs and forced her to commit acts of sodomy on him and committed acts of sodomy upon her person. She testified that this had happened many times. The fourteen year old girl testified that the defendant had asked her to commit acts of sodomy on several occasions.

The appellant first alleges error in that the court permitted two prosecuting witnesses, one aged nine years and the other aged fourteen years, to testify without first taking proper steps to qualify them as minor witnesses as required under Burns' Ind.Stat., 1968 Repl., § 2--1714.

An examination of the record in this case fails to disclose any objection on the part of the appellant to the testimony of either of these witnesses. The record does disclose when the nine year old child took the witness stand before she was asked any question concerning the crime charged, she was asked if she remembered the judge asking her to raise her right hand and to tell the truth, to which she answered, 'yes'. She was then told that the prosecutor and defense counsel and perhaps the judge would ask her questions and was asked if she would answer those questions truthfully, to which she replied 'yes'. She was asked if she knew it was wrong to tell a lie, to which she answered 'yes'. She was asked if she was going to tell any to the court, and she said 'no'. In the absence of any objection on the part of the appellant this was ample questioning coupled with the personal observation of the general maturity and demeanor of the witness by the trial judge for the judge to exercise his sound discretion under the statute to permit the witness to testify. Curry v. State (1969), Ind., 248 N.E.2d 30, 17 Ind.Dec. 668. Further, the failure of the defendant to object to the child's testimony must be treated as a waiver of any question as to the competency of such child as a witness. Morgan v. State (1962), 243 Ind. 315, 185 N.E.2d 15.

The fourteen year old child, being over the age of ten years, is presumed to be a competent witness. However, the appellant alleges that she was incompetent for the reason that on cross-examination by the appellant's attorney she was asked if she had been in juvenile court. Her answer was 'yes'; that she had been there for truancy, nothing else. She was then asked, 'Have you ever been in a mental institution?' She said, 'yes, sir.' She was asked how long she had been out and she said that she got out March 14. (The trial was being conducted on the first day of August.) There is no further questioning concerning what institution she was in or how she got there. There is in fact nothing in the record other than the attorney's leading question to indicate she was in fact in a mental institution. There was no objection to her testimony and no motion to strike her testimony by reason of any incompetency which might have been developed as a result of any mental condition. An examination of the entire record of her testimony reveals straightforward and lucid answers to numerous questions. Under the circumstances, we must presume the competency of this witness. Binder v. State (1966), 248 Ind. 30, 211 N.E.2d 886, 9 Ind.Dec. 592; Wedmore v. State (1957), 237 Ind. 212, 143 N.E.2d 649.

The appellant next claims the court erred in failing to discharge and release the appellant upon rejecting his plea of guilty arguing the rejection of the plea of guilty is tantamount to a judgment of not guilty after hearing evidence on the plea. With this we cannot agree. We have said many times that a plea of guilty must be entered knowingly and freely. Gates v. State (1962), 243 Ind. 325, 183 N.E.2d 601.

The purpose of a hearing on a plea of guilty is for the court to determine whether or not the appellant is fully apprized of the consequences of his plea of guilty and also to determine whether or not there is factual evidence that the crime to which he has attempted to plead guilty was in fact committed. In the case at bar after the witnesses testified, the appellant stated to the trial judge that their testimony was untrue. Under these...

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14 cases
  • Daniels v. State, 380S66
    • United States
    • Supreme Court of Indiana
    • September 9, 1983
    ...427, 433; Clemons v. State, (1981) Ind., 424 N.E.2d 113; Stowers v. State, (1977) 266 Ind. 403, 363 N.E.2d 978; Wright v. State, (1970) 255 Ind. 292, 264 N.E.2d 67; Stacks v. State, (1978) 175 Ind.App. 525, 372 N.E.2d 1201. He also acknowledges that the trial court fulfilled its responsibil......
  • State v. Morgan, C-850795
    • United States
    • United States Court of Appeals (Ohio)
    • December 10, 1986
    ...53 Ala.App. 492, 301 So.2d 256; Berry, supra, at fn. 8; People v. Kelly (1976), 39 Ill.App.3d 988, 351 N.E.2d 419; Wright v. State (1970), 255 Ind. 292, 264 N.E.2d 67; Milnark v. Eastlake (C.P.1968), 14 Ohio Misc. 185, 43 O.O.2d 417, 237 N.E.2d 921. One source cites a general rule of waiver......
  • Ingram v. State, 4-883A278
    • United States
    • Court of Appeals of Indiana
    • May 14, 1984
    ...error. Ingram's failure to raise the issue at the first available opportunity below, waives the issue on appeal. Wright v. State, (1970) 255 Ind. 292, 295, 264 N.E.2d 67, 69; Morgan v. State, (1962) 243 Ind. 315, 320, 185 N.E.2d 15, 17; Wedmore v. State, (1957) 237 Ind. 212, 220, 143 N.E.2d......
  • Conley v. State, 671S183
    • United States
    • Supreme Court of Indiana
    • July 13, 1972
    ...Riley v. State (1972), Ind., 280 N.E.2d 815; Brimhall v. State, supra; Dube v. State, supra; Thacker v. State, supra; Wright v. State (1970), Ind., 264 N.E.2d 67; Harshman v. State, supra; Rhodes v. State (1926), 199 Ind. 183, 156 N.E. 389; Campbell v. State, supra; Brady v. United States, ......
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