Beard v. State, 28503.

• Docket Nº: 28503.
• Citation: 88 N.E.2d 769, 227 Ind. 717
• Case Date: December 01, 1949
• Court: Supreme Court of Indiana

88 N.E.2d 769

227 Ind. 717

BEARD
v.
STATE.

No. 28503.

Supreme Court of Indiana.

December 1, 1949

[88 N.E.2d 770]

[227 Ind. 719] Joseph M. Cooper, Madison, Eugene Cooper, Madison, Cooper & Cooper, Madison, Arthur D. Cutler, Madison, for appellant.

J. Emmett McManamon, Atty. Gen., Charles F. O'Connor, Deputy Atty. Gen., Merl M. Wall. Deputy Atty. Gen., for appellee.

EMMERT, Judge.

This is an appeal from an order and judgment denying appellant's amended motion to annul and vacate a judgment entered by the trial court convicting appellant of the offense of inflicting physical injury upon Laura Lambertson with a dangerous instrument while engaged in the commission of a robbery, ^[1] and imposing a life sentence therefor. [227 Ind. 720] The motion also prayed leave to withdraw his plea of guilty to the affidavit. Although the pleading is designated as such motion, it is in fact a petition for a writ of error coram nobis and will be so considered here. Sanders v. State, 1882, 85 Ind. 318, 44 Am.Rep. 29. The error here assigned is that the order of the trial court is contrary to law. This is a proper assignment of error pursuant to Rule 2-40. The allegations of the petition were put at issue by a denial filed by the state. The evidence introduced on the hearing consisted of the record made by the trial court on arraignment as required by Rule 1-11, the intrinsic record concerning the original prosecution, the verified petition, the affidavit of appellant's stepmother, and oral testimony. No evidence was offered or introduced by the state.

Although on appeal this court presumes the action of the trial court was correct, undisputed facts will be taken as true, and as said by Myers, C. J. in Atkinson v. State, 1920, 190 Ind. 1, 6, 128 N.E. 433, 434: '* * * the only course open to us is to pronounce judgment of law upon these facts.' See also Batchelor v. State, 1920, 189 Ind. 69, 125 N.E. 773; Sanders v. State, 1882, 85 Ind. 318, 44 Am.Rep. 29, supra.

The amended petition, among other allegations, averred that appellant 'was induced into entering the plea of guilty by reason of threats of mob violence which were communicated to him by policemen and other officers * * *' and '* * * he was fearful of death or great bodily harm at the hands of a mob, in view of the information [227 Ind. 721] conveyed to him by said officers and policemen.'

The record discloses that the offense was alleged to have been committed September 9, 1947, and the affidavit filed three days later. On Saturday, September 13th, appellant was arraigned, pleaded guilty and was sentenced to imprisonment for life.

The evidence, when considered most favorably to the state, discloses the appellant and his stepmother were arrested on the preceding Tuesday by the police officers of Madison, Indiana. The chief of police of Madison stated to appellant's mother in substance that appellant was 'better off in jail and that if you [appellant] [88 N.E.2d 771] got out you might be strung up.' He also advised appellant's mother not to furnish bond. The sheriff of Jefferson County testified fifteen to twenty people from Ripley and Jefferson Counties inquired about Beard, which inquiries continued until after appellant had been removed from the Jefferson County Jail, at which time some of these persons said that his removal might save the sheriff some trouble and that 'there had been a lynching in Ripley County some forty years ago that week and there might be another one.' The sheriff took precautions in order to protect the prisoner while in his custody, although he did not tell Beard about the threats.

On the day of the arrest one of the Madison police officers told Lucille Beard, stepmother of appellant, who was under arrest for the same offense, that 'people were coming down from Ripley County tonight and take both Lauery and me out of jail for what we had done to the old lady [Mrs. Lambertson].' The same policeman told appellant's mother 'he is safer locked up. If the men outside get him they will string him up to a tree.' The evidence of Lucille Beard, the appellant, the sheriff of Ripley County, and the state policeman all revealed that [227 Ind. 722] when appellant was removed from the Jefferson County jail on Saturday, the day of arraignment, the two officers said in substance they would protect the prisoners, but that if there was any trouble when they got to Versailles they were to lie down and the officers would take care of them, and that the prisoners were warned by both officers that if any shooting occurred in the courtroom they were to lie down between the benches and the officers would protect them. The sheriff stated, 'Well, when it happened [the offense] and we went down there, there was some pretty rough talk in that crowd.' The state policeman testified, 'I told him when we parked the car exactly what they were to do, where the steps were that led to the courtroom and that if any trouble started they were to lie down in the grass and we...