Hoy v. State , 225 Ind. 428 ( 1947 )

CONCURRING OPINION I agree with the result reached in Judge Emmert's opinion but not with the process by which it was reached. The affidavits upon which Judge Emmert's opinion is based are not in the 1, 2. record. They were not offered in evidence and were not incorporated in a bill of exceptions as was necessary.Butler v. State (1945), 223 Ind. 260, and cases cited on p. 262, 60 N.E.2d 137; Headlee v. State (1929), 201 Ind. 545, and cases cited, 168 N.E. 692, 170 N.E. 433. Even had the affidavits been included in a bill of exceptions and made a part of the record they would have no value as to matters and events occurring during the trial in the presence of the court and claimed to be indiscretions and misconduct of the judge. Such matters and events may be brought to the attention of this court only by objection made to the trial court at the time and then made a part of the record by a special bill of exceptions. They may not be established by affidavits attached to a motion for a new trial. This could no more be done than the evidence and rulings of the court upon the introduction of evidence could be established by affidavits attached to a motion for a new trial. There is sound reason for this rule. The trial court alone should say what was said and done by him during the course of the trial. Any other rule would permit litigants and their attorneys to present as facts what the trial court knows to be untrue.

Without the affidavits, however, it appears from the record of the proceedings in this case that the defendant was not accorded his full constitutional right to counsel. Defendant was 3. arrested the day after the offense charged was committed and was arraigned on the day of his arrest and tried six days later. At the arraignment he had said he would obtain his own attorney but on trial day he had failed to do so. On that day the court appointed the county pauper attorney to defend him. Trial proceeded and the verdict was returned on the day counsel was appointed. We know from experience that it required substantial time for submission of the evidence, which was in the record, argument of counsel, instruction of the jury and the jury's deliberations. Little time could have been left for consultation and preparation for the trial by counsel. Adequate time for consultation and preparation was as essential as appointment of counsel. Upon the face of the record, without the affidavits, it appears that such time was not available to appellant and his counsel. Hence my concurrence in the result reached in Judge Emmert's opinion.

I cannot, however, agree with the statement in Judge Emmert's opinion that "Even representation by incompetent counsel, who made an ineffective defense, is denial of counsel." This 4. statement is much too broad and will lead some to consider that the competency of counsel may be presented to this court whenever there has been conviction. The cases cited in Judge Emmert's opinion to support the statement quoted do not do so. In the Sanchez case, cited, it was said:

"This court and other courts have held that the fact that the accused was poorly defended will not justify the reversal of a judgment where it is reasonably supported by satisfactory evidence. . . ."

In the Wilson case, cited, Judge Richman concluded his opinion with a paragraph that made it perfectly clear that his holding therein should not apply in every or even the usual case where the defendant's attorney has ignorantly or carelessly failed to give him a good defense.

Nor can I agree that affidavits, not in the record, may be considered by this court merely because they are set out in appellant's brief and the appellee has stated in its brief 5. that what is set out in appellant's brief is considered by appellee to be sufficient for the appeal. Such a statement by the appellee in his brief might, under the rules of this court, constitute a waiver by appellee of inaccuracies in appellant's statement, but would not make affidavits a part of the record, when in fact they were not, or permit this court to consider them when, according to established practice, they were not in the record.

O'MALLEY and STARR, J.J., concur in this opinion.

NOTE. — Reported in 75 N.E.2d 921.