People v. Terry

SCHOTTKY, J.

This is an appeal from a conviction of burglary in the second degree. The information charged that “The said John E. Terry did on or about the 30th day of October, 1956, . . . wrongfully, willfully, and unlawfully enter the attic of Seybold’s Tavern with intent to commit larceny therein, ...”

Upon arraignment Mr. Robert W. Anderson was appointed by the court' to defend appellant. Through counsel the appellant stated that he was ready to plead and waived the reading of the information. The clerk’s transcript contains two references to the waiver of a jury trial. At page 6 thereof: “When questioned by the Court, defendant in person pleads ‘not guilty’ of offense as charged in the information, and through counsel pleads ‘not guilty by reason of insanity’ and waives trial by jury.” On page 13 of the clerk’s transcript the following appears: “This case comes on regularly for trial on defendant’s plea of ‘not guilty’ before Hon. J. F. Good, Judge, sitting without a jury, jury having been waived in open court by the defendant, ...”

The court appointed and ordered two psychiatrists to examine the appellant to determine whether he was mentally ill.

The appellant was tried by the court, sitting without a jury, and found guilty as charged. The case was then continued for determination of appellant’s plea of “not guilty by reason of insanity.”

The court, sitting without a jury, found the appellant sane at the time of commission of the offense and adjudged him guilty as charged.

Appellant, through counsel appointed by this court, makes a number of contentions in arguing for a reversal of the judgment, chief among which are (1) that the evidence is insufficient to support the conviction and judgment, because, although appellant was unlawfully in the attic, there is no substantial- evidence to support a finding that he entered there with the specific intent to commit larceny; (2) that appellant was improperly denied a jury trial, because a jury trial must

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be waived by both the accused and defense counsel and a waiver by counsel alone is not sufficient.

The evidence may be summarized as follows: On the evening of October 29, 1956, Mr. Donald Seybold was tending bar at Seybold’s Tavern. About 10:30 p. m. the appellant came into the bar and ordered a 7-Up. Appellant remained in the bar for about half an hour during which time he went to the rest room several times, matched with Mr. Seybold for the phonograph and lost, and attempted to create an argument with other patrons, without success. He left the bar around 11 p. m.