*1 by appointed represented counsel was judge court. The record shows safeguard- care in exercised the most meticulous ing rights respects, and appellant in all preserved a record so caused to made and be thorough man could complete that no reasonable in this case. doubt the correctness of the decision plea he returned After the entered his was large county jail, to the and he there took a overdose an sleeping pills in what seems to have been suicide, he attempt at and as a result was rushed pumped. hospital where stomach hospital keeping him at the There no facilities for days he any period, and three later considerable imposed, and to court where sentence was returned reformatory. There is evi- he taken to the was then he could make in- dence that he was sentenced when telligent inquiries he then response to mentally constitu- find no violation alert. We sentencing him under the tional produced. he conditions himself
Judgment affirmed. Reported 2d 298. in 116 N. E.
Note. — v. Indiana.
Blanton Rehearing 29,069. Filed October 1953. [No. January 19, 1954.] denied *2 Kilgore, of Indian- Edward C. Brennan and Obed T. apolis, appellant. for General, Attorney Steers,
Edwin K. Owen S. Boling, Deputy Attorney General, appellee. Appellant by jury and found was tried
Draper, J. guilty of the crime of while armed. years twenty Indiana
sentenced a term of *3 assigning overruling the appeals, as error Prison. of motion for new trial. his 21, 1952, April an in one count was filed
On affidavit against appellant charging rob- him with the crime of guilty. bery. plea 26 of not On April he entered On charging robbery May count second 3rd the state filed begun 15, 1952. on October The trial was while armed. charges the same identical Each of the affidavit count being only robbery, that count one the difference §10-4101, Repl., charges Burns’ 1942 under deadly weapon charges robbery awith the second while on the appellant convicted was The under §10-4709. only. count second filing count con- of the second says appellant count, amend- of the first which an amendment
stituted Repl., improper under Burns’ was ment amendment which an it was because §9-1133 charged sought after to be changed crime Although the record plea. had appellant entered present shows that the person filing counsel at the time of count two of the affidavit, no was made then or later to the filing Therefore, question regard thereof. no to filing presented thereof is to this court.
The record does not show that arraigned ever plea or that he ever entered a of not
guilty to the second
affidavit,
count of the
appellant proceeded
to trial without
objection in the trial court that he had not been
arraigned
required
plead
or
he had not been
to
to
the affidavit. The failure of the record to show an
arraignment
plea,
them,
or
either
does not invali
date
conviction unless the record shows that
the de
objected
entering
fendant
upon
before the trial
to
arraignment
plea.
trial for lack of such
Burns’ 1942
Repl.,
appellant by proceeding
“The
§9-1201.
trial
arraignment
without
.
.
. waived
and the
put
plea
guilty
Harvey
statute
in a
of not
for him.”
v.
ence of the
overruled,
and the motion was
ruling
assigned
and that
as error. The evi-
upon
dence heard
the trial of the issue of the
guilt
appellant’s
presented
or innocence is not
to this
Therefore,
court.
of the correctness of the
ruling
suppress
court’s
on the motion to
evidence is
are
We
unable
determine whether
appellant sought
suppress
evidence which the
against him
introduced
on the trial
the main issue.
*4
therefore,
We,
cannot determine whether error in the
overruling
evidence,
suppress
of the motion to
if such
was,
prejudicial
appellant.
ap-
there
“The
affirmatively by
pellant
the
must show
record that there
prejudicial
to his
was an error
substantial
before
appeal.”
he is entitled to a
on
Pitts v. State
reversal
168,
(1939), 216 Ind.
It that the is asserted testimony of certain witnesses over evidence the is appellant. of the The rule well set- predicated upon the' ad that when is tied error testimony rejection motion for mission answer, if question trial should set out new thereof, one, or the there were substance ruling of the court with in the trial court and made 217, respect thereto. v. Weer 537; Dwigans 787, 2d v. State E. 2d E. 37 N. N. 100; 434, 2d Smith v. State (1944), 222 Ind. 54 N. E. The motion E. 2d 742. (1942), 219 Ind. 39 N. rule, comply wholly with this fails
new trial presented. question is therefore contrary to law is the verdict Whether is a not supported the evidence not because However, inappropriate is think it we following statement point out that we find appellant’s brief: Palace, an that Chinese “It admitted doing a restaurant business corporation, Indiana in day March, 12th Indianapolis, on the gun approxi- point and' robbed of up at held Poy mately time of the one At the $950.00. corporation, Chinn, president of the owner Hee were that neither of the men
present, wearing testified kind. a mask of appellant was as identified this “Further alleged (2) committed men who of the two one holdup men was armed with One of offense. gun. gun appellant did not show Two waiters present at time. One to Chinn in addition Sing, identify waiters, namely did not of said waiter, Moi, namely, did iden- other appellant. The that the man Both waiters testified tify appellant. appellant held a handker- tentatively as identified his face.” chief to *5 questions
Other appellant’s raised in motion for new trial have been by appellant’s waived failure to brief them.
Finding no judgment error in the record the of the trial court is affirmed. Rehearing.
On Petition foe appellant’s original C. J. The Draper, brief in this points case out that when count two of the affidavit filed, charging robbery, armed present by Moreover, counsel. the record shows following entry May 3, under date 1952: “Comes now the by State of Indiana Frank H. Fairchild, prosecuting attorney by Wilbur Grant, deputy; appears defendant person in
by counsel, Rutherford; Robert State files Count Two Affidavit Robbery, to-wit: Armed which is as follows:” charging Here followed the affidavit robbery. armed Nevertheless, petition in his for rehear- ing now present insists he was not person either in
by counsel at the time count two was filed. “The record as properly embodied in a prepared and duly transcript imports authenticated absolute verity, aided, varied, and cannot be by or contradicted Procedure, extrinsic Appellate §186; evidence.” Elliott Flanagan, Hamilton, and see Wiltrout & How- §2292. ever, actually there is some confusion in the record due May 3, 1952, to the fact that on there were two defend- case, being in ants this one of them one James Marshall plea guilty. who later entered entry apply- above referred be construed as If the Marshall, appellant, it ing and not to the would not change in this case. The record discloses conclusion our appeared on several occasions subsequent May 3, 1952, pur- counsel for various gave poses. prelimi- On October court its 1-7A, nary jury pursuant instructions to Rule presence wherein court told attorneys appellant and his two that the defendant was charged robbery, and with armed applicable two counts the affidavit were read. *6 defining portions of the statutes offenses were those including might read, penalties imposed on that be charges. of those a conviction
Although represents now that the first knowledge filing he came had second count
during opening statements to which following day, apparent it were made the is attorneys and he and learned must have preliminary known thereof when the instructions filing given, to thereof was then but no objection. made, proceeded trial without ever knowledge party if It is well settled that has end, he in the must which frustrate matter will opportunity to avail himself of earliest to be proceeding or he will deemed arrest object is to when the end have waived his go on without permitted to not be reached. will success, and taking ultimate objection, his chances of is case he go impeach the trial in back afterwards Miller, Jr. v. disappointed at the result. 120, cited. and authorities 115 N. E. 2d that, to the amend- no belief
We adhere court, having the trial made in been affidavit ment of the regard thereto ap- and accusations allegations, assertions Other pro se, rehearing, was filed which for pellant’s petition petition appropriate be not considered are discussed. they rehearing are therefore-not rehearing Petition for denied.
Gilkison, J., participating. Reported in 115 N. E. 2d 122. Note. —
Rehearing denied, 116 E. 2d N. 631. Department Revenue, Indiana of State Gross Income Tax Division v. Nebeker. 29,004. Rehearing Filed December
[No. 1953. January 27, denied 1954.] *7 General, Steers, Attorney McShane, K. J. Edwin John Lloyd Hutchinson, Schmadel, George E. Earl B. C.