Blanton v. State

115 N.E.2d 122, 233 Ind. 51, 1953 Ind. LEXIS 284

• Court: Indiana Supreme Court
• Decided: October 27, 1953
• Docket: 29,069
• Status: Published

Opinions

Draper, J.

Appellant was tried by jury and found guilty of the crime of robbery while armed. He was sentenced to a term of twenty years in the Indiana State Prison. He appeals, assigning as error the overruling of his motion for new trial.

On April 21, 1952, an affidavit in one count was filed against appellant charging him with the crime of robbery. On April 26 he entered a plea of not guilty. On May 3rd the state filed a second count charging robbery while armed. The trial was begun on October 15, 1952. Each count of the affidavit charges the same identical robbery, the only difference being that count one charges robbery under Burns’ 1942 Repl., §10-4101, while the second charges robbery with a deadly weapon under §10-4709. The appellant was convicted on the second count only.

The appellant says the filing of the second count constituted an amendment of the first count, which amendment was improper under Burns’ 1942 Repl., §9-1133 because it was an amendment which changed the crime sought to be charged after the appellant had entered his plea. Although the record shows that the appellant was present in person and by counsel at the time of the filing of count two of the affidavit, no objection was made then or later to the filing thereof. Therefore, no question with regard to the filing thereof is presented to this court.

The record does not show that the appellant was ever arraigned or that he ever entered a plea of not guilty to the second count of the affidavit, but the appellant proceeded to trial without any objection in the trial court that he had not been arraigned or that he had not been required to plead to the affidavit. The failure of the record to show an arraignment and plea, or either of them, does not invalidate a conviction unless the record shows that the defendant before the trial objected to entering upon the trial for lack of such arraignment or plea. Burns’ 1942 Repl., §9-1201. “The appellant by proceeding to trial without objection . . . waived arraignment and the statute put in a plea of not guilty for him.” Harvey v. State (1953), 232 Ind. 574, 114 N. E. 2d 457.

Before trial the appellant filed a motion to suppress evidence. Evidence thereon was heard out of the presence of the jury, and the motion was overruled, and that ruling is assigned as error. The evidence heard upon the trial of the issue of the appellant’s guilt or innocence is not presented to this court. Therefore, no question of the correctness of the court’s ruling on the motion to suppress evidence is presented. We are unable to determine whether the evidence which the appellant sought to suppress was introduced against him on the trial of the main issue. We, therefore, cannot determine whether error in the overruling of the motion to suppress evidence, if such there was, was prejudicial to the appellant. “The appellant must show affirmatively by the record that there was an error prejudicial to his substantial right before he is entitled to a reversal on appeal.” Pitts v. State (1939), 216 Ind. 168, 23 N. E. 2d 673.

It is asserted that the court erred in admitting in evidence the testimony of certain witnesses over the objection of the appellant. The rule is well set-tied that when error is predicated upon the' admission or rejection of testimony the motion for a new trial should set out the question and answer, if there were one, or the substance thereof, the objection made in the trial court and the ruling of the court with respect thereto. Weer v. State (1941), 219 Ind. 217, 36 N. E. 2d 787, 37 N. E. 2d 537; Dwigans v. State (1944), 222 Ind. 434, 54 N. E. 2d 100; Smith v. State (1942), 219 Ind. 533, 39 N. E. 2d 742. The motion for new trial wholly fails to comply with this rule, and therefore no question is presented.

Whether the verdict of the jury is contrary to law because not supported by the evidence is a question not presented. However, we think it is not inappropriate to point out that we find the following statement in the appellant’s brief:

“It is admitted that the Chinese Palace, an Indiana corporation, doing a restaurant business in Indianapolis, was on the 12th day of March, 1952, held up at gun point and' robbed of approximately $950.00. At the time of the robbery one Poy Hee Chinn, president of the owner corporation, was present, and testified that neither of the men were wearing a mask of any kind.

“Further that this appellant was identified as one of the two (2) men who committed the alleged offense. One of the holdup men was armed with a gun but appellant did not show a gun. Two waiters in addition to Chinn were present at the time. One of said waiters, namely Sing, did not identify appellant. The other waiter, namely, Moi, did identify appellant. Both waiters testified that the man tentatively identified as appellant held a handkerchief to his face.”

Other questions raised in appellant’s motion for new trial have been waived by appellant’s failure to brief them.

Finding no error in the record the judgment of the trial court is affirmed.