Penn v. State

On Petition For Rehearing

Achor, C. J.

As cause for rehearing appellant asserts that this court erred in its opinion and decision in the following:

“In failing to give a statement in writing and in failing to give a decision thereon of a substantial question arising on the record, and presented by appellant’s brief, two-wit: As to whether the trial court erred in failing to ask the appellant if he had any legal cause to show why judgment should not be pronounced upon him, as required by Section 9-2205, Burns’ Ind. Statutes, Annotated, 1956 Repl. Vol. 4, Part 1.”

This question was not discussed in oral argument to this court. However, upon re-examination of appellant’s brief we note that the issue was raised at page 57. Since counsel did not in the course of oral argument formally waive the issue, it is proper for appellant to request this court to make a statement in writing and render a decision upon this question of law.

The statute which is controlling of the circumstances here involved is as follows:

“When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, or the finding of the court, and asked whether he have any legal cause to show why judgment should not be pronounced upon him.” Acts 1905, ch. 169, §294, p. 584 [§9-2205, Burns’ 1956 Repl.].

However, in construing the above statute, it must be observed that it is an integral part of the 1905 Act which dealt exclusively with the matter of the pronouncement of judgment against the defendant “after a finding or verdict of guilty.”¹ Such a circumstance exists only after a plea of not guilty, trial and a resulting finding and verdict of guilty.

The statute does not have application under a circumstance where a defendant pleads guilty to the offense of which he is charged. Under such circumstances, having previously been apprised of his rights under the law, there is no basis

under which a defendant could show “legal cause . . . why judgment should not be pronounced upon him.” [§9-2205, supra] By his plea of guilty, appellant, in effect, admitted that no legal cause exists why judgment should not be pronounced. Therefore, §9-2205, supra, is not applicable under circumstances where there is no verdict of the jury or a finding of the court.²

It is only under circumstances where a defendant has (1) pleaded not guilty to a charge and has been tried and found guilty and (2) has not filed a motion for new trial or motion in arrest of judgment, therin asserting reasons of law why judgment should not be pronounced, that such defendant (who may be without counsel) must be given the opportunity to state orally to the court “any legal cause [if there be any] to show why judgment should not be pronounced upon him.” [§9-2205, supra.] Lillard v. The State (1898), 151 Ind. 322, 50 N. E. 383; McCorkle v. The State (1860), 14 Ind. 39.³

Petition for rehearing is denied.

Arterburn, Bobbitt and Landis, JJ., concur.

Jackson, J., dissents.

Note. — Reported in 177 N. E. 2d 889. Rehearing denied 179 N. E. 2d 283.

1 . “After a finding or verdict of guilty, against the defendant, if a new trial be not granted, or the judgment be not arrested, the court must pronounce judgment.” Acts 1905, ch. 169, §290, p. 584 [§9-2201, Burns’ 1956 Repl.].

“For the purpose of judgment, if the conviction be for an offense punishable by death or imprisonment, the defendant must be personally present; if for a fine only he must be personally present, or some responsible person must undertake for him to replevy the judgment and costs; judgment may then be rendered in his absence.” Acts 1905, ch. 169, §291, p. 584 [§9-2202, Burns’ 1956 Repl.].

“When the defendant is convicted of any offense, if he be in custody, the court may direct the officer in whose custody he is to bring him before it for judgment.” Acts 1905, ch. 169, §292, p. 584, [§9-2203, Burns’ 1956 Repl.].

“If in any case the defendant be not present when his personal attendance is necessary, the court may order the clerk to issue a warrant for his arrest, which may be served in any county of this state, as a warrant of arrest in other cases is served.” Acts 1905, ch. 169, §293, p. 584 [§9-2204, Burns’ 1956 Repl.].

“When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, or the finding of the court, and asked whether he have any legal cause to show why judgment should not be pronounced upon him.” Acts 1905, ch. 169, §294, p. 584 [§9-2205, Burns’ 1956 Repl.].

“If not sufficient cause be alleged or appear to the court why judgment should not be pronounced, it shall thereupon be rendered.” Acts 1905, ch. 169, §295, p. 584 [§9-2206, Burns’ 1956 Repl.].

2 . When a plea of guilty is entered, no finding is necessary and judgment follows the plea. Witte v. Dowd, Warden (1951), 230 Ind. 485, 496, 102 N. E. 2d 630, 635, 344 U. S. 841, 97 L. Ed. 654, 73 S. Ct. 54.

3 . Por a general consideration of propositions related to the above issue, see, 113 A. L. R. 821.