Batchelor v. State

• Citation: 125 N.E. 773,189 Ind. 69
• Decision Date: 30 January 1920
• Docket Number: 23,632
• Parties: Batchelor v. State of Indiana
• Court: Supreme Court of Indiana

125 N.E. 773

189 Ind. 69

Batchelor v. State of Indiana

No. 23,632

Supreme Court of Indiana

January 30, 1920

From Lake Criminal Court; Martin J. Smith, Judge.

Prosecution by the State of Indiana against Albert C. Batchelor. From a judgment of conviction for murder in the first degree, the defendant appeals.

Reversed.

George E. Hershman, for appellant.

Ele Stansbury, Attorney-General, and A. B. Cronk, for the state.

OPINION

Lairy, J.

On July 2, 1919, the grand jury of Lake county, Indiana, returned into the Lake Criminal Court an indictment against appellant charging him with the crime of murder in the first degree. On the same day appellant was brought from the jail in which he was confined into court, and, being arraigned and asked to plead to the indictment, entered a plea of guilty, which the court accepted. On the next day appellant was brought into court, and the court found him guilty as charged in the indictment of murder in the first degree, and that he should suffer death in the manner prescribed by law, and pronounced judgment accordingly.

On July 5, two days later, appellant by his attorney filed in the Lake Criminal Court his motion for an order granting him leave to withdraw his plea of guilty entered on July 2, and to enter a plea of not guilty, and also for an order setting aside the finding and judgment of the court entered on such plea of guilty on July 3, 1919. This motion was by the court overruled. The appellant excepted to such ruling, and on appeal bases his assignment of error thereon.

The verified motion filed by appellant was accompanied by affidavits in its support, and the state filed affidavits in opposition thereto. It seems to be the rule adopted by this court that, where there is a conflict between the affidavits filed in favor of a motion such as this and those filed in opposition thereto as to a given fact, this court will regard such disputed fact as found in favor of the prevailing party, and that it has no power to disturb such finding on the weight of the evidence. Wells v. Bradley, etc., Co. (1891), 3 Ind.App. 278, 29 N.E. 572; Casto v. Shew (1904), 32 Ind.App. 338, 68 N.E. 1041. In view of the rule thus stated, the court will consider only the facts disclosed by the affidavit filed by the state and the uncontroverted facts shown by the motion of appellant and the affidavits in its support.

The material facts thus shown are that appellant was twenty-three years of age. On June 27, he was arrested in Chicago and taken to the Forty-eighth street police station at about two o'clock a. m. and kept there for about an hour, after which he was taken to the Harrison street station and kept there until about six o'clock of the same morning. He was then removed to Gary, Indiana, and placed in the city jail at that place, where he was confined until July 1, when he was removed to Crown Point and confined in the Lake county jail. While he was confined in Chicago and afterwards while he was confined in the jail at Gary, he made frequent requests of the officers in charge to send word to his relatives and to permit him to see and consult with a lawyer. The officers refused to comply with either of these requests, telling him that he would have a chance for that later. On July 2, the next day following that on which appellant was taken to Crown Point, he was taken before the court at about two o'clock p. m. to plead to the indictment returned against him by the grand jury. After he was taken into the courtroom, he was told that he was indicted and that he had been brought in to answer to the indictment, at which time he stated that he desired to be represented by a lawyer. The facts thus far set out are stated in appellant's affidavit and are not controverted.

The affidavit of Judge E. Miles Norton, who was present in court at the time appellant was arraigned and entered his plea, is clear and concise as to what occurred at that time, and the facts therein stated are not controverted as to any material matter. Affiant was the judge of the circuit court of Lake county and was present in the criminal court on the afternoon of July 2, 1919. According to the statement in this affidavit, appellant was brought into court before the Hon. Martin J. Smith, judge of said court, and the indictment was read to appellant. Appellant was then informed by the court that he could have a lawyer and that he had a right to have a lawyer; that he could plead not guilty and have a jury trial; that if he pleaded guilty he would give the court a right to punish him as provided by law. The defendant then informed the court that he was guilty and that he desired to plead guilty. The court then said, "Now you understand that upon your plea of guilty, it will be the duty of the court to impose the penalty as provided by law," and appellant then stated that he so understood it. The court then said, "With that understanding I will accept your plea of guilty."

It is shown that, within a few minutes after this occurred, appellant was sworn and interrogated, and that he gave testimony before the court as to the details of the crime charged in the indictment and his connection therewith. A copy of the testimony is attached to the affidavit filed by the prosecuting attorney in opposition to appellant's motion.

Many other facts are set forth in affidavits, but only such facts are stated in the opinion as are deemed material to the decision and such only as are not controverted. Mr. Platt, a deputy sheriff of Lake county, states in his affidavit that he had charge of appellant during the time he was confined in the Lake county jail, and that appellant did not at any time before he was sentenced request him to send word to any relative or lawyer, and that no lawyer for appellant was refused permission to see him during that time. It will be observed that this affiant does not say that he had charge of appellant when he was taken to the courtroom to plead to the indictment. Appellant states that when he was in the courtroom he said that he wanted an attorney to appear for him. It does not appear that he made the statement to the court, and it must be assumed that he made it to a deputy who had him in charge.

Richard Kilborn in his affidavit states that he was the deputy who had charge of appellant in the courtroom and on his way to and from the courtroom on the afternoon on which the plea was entered and he does not deny the statement made by appellant in regard to his requests for an attorney.

It is shown by affidavit that appellant did not, at the time he was called upon to plead, state to the court that he desired an attorney, but it is not shown that he was asked by the court whether he desired to have a lawyer. The statements of appellant to the effect that, while he was in jail at Gary for four days before he was taken to Crown Point, he made frequent requests of the officers in charge to be permitted to see and to consult with a lawyer and that such requests were refused are not in any manner controverted.

Under the showing made, appellant asserts that he was denied a right guaranteed by the Constitution of the state. Section 13 of the Bill of Rights provides: "In all criminal prosecutions the accused shall have the right to a public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face; and to have compulsory process for obtaining witnesses in his favor." Constitution, Art. 1, § 13.

A person prosecuted for a crime may waive the rights guaranteed to him by this provision of the Constitution, and the court is called on to decide whether under the facts shown in this case appellant did or did not waive such rights. Appellant pleaded guilty to the crime of murder in the first degree. If this plea was made advisedly with full knowledge of his rights and of the consequences of such a plea, it amounted to a judicial confession of his crime and a waiver of his right to a trial by jury; but before entering such plea he had a right to consult with counsel learned in the law and to be fully advised as to his rights and as to the consequences of his act.

It has been held that a constitutional right to be heard by counsel is not limited to the right to be heard by counsel at the trial, but that the spirit of the provision contemplates the right of accused to consult with counsel at every stage of the proceedings. People, ex rel. v Risley (1883), 66 How. Pr. (N. Y.) 67; State v. Moore (1900), 61 Kan. 732, 60 P. 748. In the case first cited the court said: "Perhaps the literal letter of the constitutional provision would be complied with by allowing to the accused the benefit of counsel upon the 'trial,' but such a construction would illustrate the truth of that part of the old legal maxim which declares: 'The letter killeth,' and disregard its conclusion, 'while the spirit giveth life.' Undoubtedly the clause of the Constitution under consideration was adopted to secure to the accused person all the benefits which could flow from the employment of counsel to conduct his defense; and to give him those it is essential that he should be allowed to consult with his counsel not only during the actual trial, but prior thereto, in order to prepare for his defense. Where a right is conferred by law, everything necessary for its protection is also conferred, although not directly provided for. The privilege of the presence of counsel upon the trial would be a poor concession to the accused if the right of consultation with such counsel prior to the trial was denied. To give life and effect, therefore, to the provision of ...