The appellant, Ralph D. Todd, was prosecuted by affidavit in two counts; the first count charged automobile banditry; the second count uttering a forged instrument. The second count grew out of the same transaction involved in the first count. To this affidavit the appellant plead not guilty. The trial was had before a jury which resulted in a verdict of guilty on each count; that he be imprisoned for ten years on the first count, and fined in the sum of ten dollars on the second count. The jury found that appellant was thirty-six years of age. Thereupon, the trial court sentenced the appellant on the first count to be imprisoned in the Indiana State Prison for a term of ten years, and on the second count imprisoned for not less than two or more than fourteen years and fined ten dollars and costs, and ordered the said sentences should be served concurrently. It is from this judgment this appeal is taken.
The record discloses that on October 7, 1947, the *Page 499 appellant was arraigned and plead not guilty; that at that time the cause was set for trial for November 3, 1947. The record further discloses that on said last mentioned date the appellee, by the prosecuting attorney, answered in open court that it was ready for trial; that the appellant also at said time appeared in person and elected to represent himself in this case without the aid of counsel, and requested a trial by jury and announced that he was ready for trial. Thereupon, a jury was impaneled and the cause submitted for trial which resulted in the verdict and sentence as above indicated.
On December 3, 1947, appellant filed his motion for a new trial and assigned as causes therefor, that the verdict was contrary to law; that the verdict was not supported by sufficient evidence, and that the appellant was prevented from having a fair trial by the following errors of the court, overruling the appellant's motion for a continuance and postponement of his trial; and finally, in permitting appellant's case to be tried without appointing an attorney to represent and defend him.
On January 12, 1948, as shown by appellant's bill of exceptions No. 2, the appellant filed the affidavit of one of his attorneys, Mr. O.B. Hanger, in support of his motion for a new trial. The substance of this affidavit is that this attorney filed the appellant's motion for a new trial, and at the time he so filed the same, he inquired of the trial judge whether or not said appellant had requested a continuance or postponement of his case on the day of his trial, on the grounds that the appellant did not have counsel employed to represent him, and thereupon, said judge had answered in the affirmative, and further informed the affiant that he had overruled and denied said request on the grounds *Page 500 that the appellant had had ample time to employ counsel; that he further inquired of the court at said time, whether the appellant had requested the court to appoint counsel to represent him, and the court again answered in the affirmative, and stated that he had denied the request on the grounds that the court "did not intend for the taxpayers of Jackson County to employ counsel to represent said defendant"; and finally, that the court's record failed to show such requests so made by appellant in open court or the court's rulings that were made on said requests.
Before the motion for a new trial was ruled on, the appellant filed his written motion for a nunc pro tunc entry showing that the appellant on trial day had moved for a continuance and also, for the appointment of an attorney to represent and defend him as a poor person and the ruling on each request denying the same. This motion was not verified and no evidence was offered by appellant in support of it. The record discloses that this motion was overruled and then the motion for a new trial was also overruled.
The only alleged errors properly assigned by appellant are the overruling of his motion for a new trial, and the overruling of his said motion for a nunc pro tunc entry which we will consider in their order.
Appellant contends that the verdict is contrary to law for the reason that the jury attempted to assess his punishment on the second count by a fine in the sum of ten dollars. He has 1-3. failed to raise any question on this proposition for the reason that he did not object to the verdict at the time it was returned by the jury, nor did he, nor could he, under these circumstances, move for a venire de novo. Limeberry v.State (1945), 223 Ind. 622, 63 N.E.2d 697. Nor has he made any motion to modify the judgment *Page 501 herein, as was the procedure in the case last above cited. Due to the importance of this case, however, we desire to point out that it was not the duty of the jury to assess the punishment on this count as § 10-2102 Burns' 1933, 1942 Replacement, being the statute defining the offense of which he is charged in this count, fixes the punishment therefor by an indeterminate sentence. Under these circumstances it is the court and not the jury which pronounces the sentence, § 9-1821 Burns' 1933, 1942 Replacement, and the judge fixes not only the punishment as to imprisonment, but all other punishment as prescribed by this section of the criminal code for the violation of which the defendant is charged. Frey v. State (1925), 196 Ind. 359,147 N.E. 279. It is true the last case above cited was not construing said § 9-1821, but the section then in effect which it was construing, insofar as the question now before us is concerned, was identical with the present section. See also Miller v. TheState (1898), 149 Ind. 607, 49 N.E. 894. That portion of the verdict which fixes appellant's punishment on the second count is mere surplusage.
Appellant also insists in his motion for a new trial that the verdict is not sustained by sufficient evidence. He has wholly failed to point out in his brief any such failure. We have, 4. however, examined the evidence and in our opinion the same is ample to sustain the conviction.
Other reasons contained in the motion for a new trial are based on the theory that the appellant had moved for a continuance and also for counsel. The record does not disclose that such motions were made or ruled upon by the trial court, in fact, as above indicated, the record shows to the contrary.
The above described affidavit in support of the *Page 502 motion for a new trial is of no force or effect. It is virtually an attempt to dispute the record as to matters which are 5-7. properly part of the record and which cover events occurring during the trial merely by a hearsay statement of the affiant. On matters of record proper courts speak only through the record. Other matters and events occurring during the trial in the presence of the court and claimed to be indiscretions and misconduct of the judge 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. See the majority opinion in Hoy v. State (1947), 225 Ind. 428, 75 N.E.2d 915.
Lastly, in this motion for a new trial, it is contended that the court erred in permitting appellant's case to be tried without appointing an attorney to represent and defend 8-10. him. Appellant had a perfect right to intelligently waive his constitutional right to counsel, and to represent himself without counsel if he so desired. It was the duty of the court at the time that appellant entered his plea to fully advise him as to his rights and as to the consequence of his plea. Among other things, it was the duty of the court to explain to the appellant that the was entitled to counsel step by step throughout the proceedings, Batchelor v. State (1920),189 Ind. 69, 125 N.E. 773, and if he was a pauper to offer, and if he so desired, to provide him with adequate counsel. Wilson v. State (1943), 222 Ind. 63, 51 N.E.2d 848. Unlike the case of Batchelor v. State, supra, there is nothing in the record which even tends to show whether or not this advice was given, nor is there anything in the record to show that appellant was a pauper and entitled to counsel. We must presume that the trial *Page 503 court did its duty in the absence of any showing whatsoever on these points. Gavit's Indiana Pleading and Practice § 520. The record shows that appellant elected to represent himself, and there is nothing to indicate that he did not make this election intelligently.
No question can be raised as to the ruling of the trial court denying appellant's motion for a nunc pro tunc entry. Appellant seems to be under the impression that the above mentioned affidavit had to be considered and deemed conclusive by the trial court.
Although the record does not disclose that this affidavit was offered in support of appellant's motion, or that it was all the evidence considered upon the subject, yet, if we admit 11. that this affidavit was and should have been considered by the court in ruling on this motion, we cannot conclude that it would be conclusive whatever its contents. The overruling of the motion amounted to a denial by the court that appellant had moved for counsel and a continuance, and there was no duty to file a counter affidavit to that effect. Where affidavits have been filed opposing a pending motion for a nunc pro tunc entry which affidavits are not contradicted, the court is not bound by the statements in such affidavits. Under these circumstances "uncontradicted evidence of the party given to establish a fact of this character cannot preclude the rightful power of the court to find otherwise by resorting to its own knowledge." Moerecke v. Bryan (1915), 183 Ind. 591, 596, 108 N.E. 948. This principle is broad enough to include the present case where the uncontradicted affidavit is in support of the motion.
Judgment Affirmed.
Gilkison, J. and Emmert, J. dissent.
NOTE. — Majority Opinion reported in 81 N.E.2d 530. Minority Opinion reported in 81 N.E.2d 784. *Page 504