Bolton v. State

• Decision Date: 02 May 1945
• Docket Number: 28033.
• Parties: BOLTON v. STATE.
• Court: Indiana Supreme Court

60 N.E.2d 742

223 Ind. 308

BOLTON v. STATE.

No. 28033.

Supreme Court of Indiana

May 2, 1945

Appeal from Criminal Court, Lake County; William J Murray, judge.

Oscar B. Thiel, of Gary, for appellant.

James A. Emmert, Atty. Gen., and Frank E. Coughlin, First Asst Atty. Gen., for appellee.

RICHMAN Judge.

To an affidavit against appellant and two others, Taylor and Hall appellant pleaded not guilty, waived a jury, was tried in January, 1942, convicted and given an indeterminate sentence of 10 to 25 years in the State Prison on the offense of robbery as defined in the first part of § 10-4101, Burns' 1933, Baldwin's 1934, Sec. 2416. The other two defendants pleaded guilty and were given the same penalty but because of their age they were sent to the Reformatory. Their testimony at appellant's trial constituted the sole direct evidence connecting appellant with the crime.

In September, 1943, appellant filed a verified petition for writ of error coram nobis to which were attached affidavits of Taylor and Hall recanting the former testimony wherein they implicated appellant and asserting that they were coerced into so testifying by the deputy prosecuting attorney who threatened them with prosecution under the second part of § 10-4101 (§ 2416) with penalty of life imprisonment, if they did not help convict appellant. An answer filed by the state exhibited the affidavit of the deputy denying such coercion and stating that their testimony was given 'freely understandingly and voluntarily.' Attached also was the affidavit of a police officer stating that before the trial Hall and Taylor confessed to him the same facts to which they later testified and that such confession was voluntary and 'not made under the influence of fear produced by threats, intimidation or undue influence.'

The same judge who presided at the trial heard the evidence on the petition for the writ of error coram nobis. It is consisted of the verified petition, the state's answer, all the affidavits above mentioned, an additional more detailed affidavit from each of the recanting witnesses, the affidavit of appellant that he had no part in the crime, and the complete record of all the evidence given at the trial. At the conclusion of the hearing the petition was overruled and judgment entered denying the writ. In this appeal therefrom all the evidence submitted at the hearing is brought into the record by bill of exceptions.

Appellant insists that the trial court was required to set aside the conviction and to grant a new trial since the only testimony to sustain the conviction was later repudiated by the witnesses. We have read the entire record and found therein detailed accounts of the activities of the three defendants prior to and about the time the robbery was committed, from which complete story we would be able, if it were within our province, to infer that appellant's confederates told the truth at the trial and not in their recanting affidavits.

Whether a confession by a witness that he gave perjured testimony at the trial is presented in an ordinary motion for new trial or by a petition for writ of error coram nobis the question is: When did the witnesses tell the truth? The tribunal by which it is to be decided is the trial court, subject of course to review but not under rules more favorable to appellant than apply to review of a trial court's determination, upon conflicting evidence, of any other question of fact. The reasons are excellently stated, with citation of authorities which we omit, by Justice Steinert in State v. Wynn, 1934, 178 Wash. 287, 34 P.2d 900, 901 as follows: 'Recantation by an important witness of his or her testimony at the trial does not necessarily, or as a matter of law, entitle the defendant to a new trial. The determination of such matters rests in the sound discretion of the trial court and its action will not be set aside except for clear and manifest abuse. The trial judge is in a peculiarly advantageous position, under the prevailing circumstances, to pass upon the showing made for a new trial. He has the benefit of observing the witnesses at the time of the trial, is able to appraise the variable weight to be given to their subsequent affidavits, and can often discern and assay the incidents, the influences, and the motives that prompted the recantation. He is, therefore, best qualified to determine what credence or consideration should be given to the retraction, and his opinion is accordingly entitled to great weight. If the rule were otherwise, the right of new trial would depend on the vagaries and vacillations of witnesses rather than upon a soundly exercised discretion of the trial court. The untrustworthy character of recanting testimony is well known by those experienced in the trial of criminal cases, and when such testimony is offered it calls for a rigid scrutiny. When the trial court, after careful consideration, has rejected such testimony, or has determined that it is of doubtful or insignificant value, its action will not be lightly set aside by an appellate court.'

To this statement we add the following from the concurring opinion of Judge Cardozo in People v. Shilitano, 1916, 218 N.Y. 161, 112 N.E. 733, 739, L.R.A.1916F, 1044: 'Three witnesses for the prosecution have stated under oath to the trial judge that their testimony upon the trial was false. It became his duty to say whether they were conscience-stricken penitents, or criminal conspirators to defeat the ends of justice. He has held them to be conspirators. Unless we can say that he was wrong, and that they were not conspirators, but penitents, we have no right to reverse his order. But I do not see how we can say that he was wrong. I do not understand that even the judges who think this judgment should be reversed assert that he was wrong. Their view is that, with such a conflict of oaths, he should have abandoned the search for truth, and turned it over to a jury. That would have been an easy avenue of escape from a solemn responsibility, but I cannot satisfy myself that along that avenue lay the path of duty. I think it was the duty of the trial judge to try the facts, and determine as best he could where the likelihood of truth lay.'

In similar case, People v. Lee, 1935, 9 CalApp.2d 99, 48 P.2d 1003, 1007, it was said: 'We are finally constrained to observe that the responsibility of weighing the recantation was imposed upon the trial court. Upon this tribunal rested the duty of determining whether the recantation was true or false. It could not properly shift to another jury the responsibility with which, in the proper discharge of its duty, it was burdened (concurring opinion of Justice Cardozo in People v. Shilitano, 218 N.Y. 161, 112 N.E. 733, 739, L.R.A.1916F, 1044). It is too firmly established to require the citation of any authorities that the trial court is vested with a wide discretion in passing upon motions for a new trial and that only when it is clearly made to appear that the trial court has capriciously or arbitrarily abused its discretion its action granting or denying such a motion will be disturbed.' See also State v. Buton, 1927, 124 Kan. 509, 260 P. 634; Blass v. People, 1926, 79 Colo. 555, 247 P. 177.

It is provided in Rule 1-9, 1943 Revision, that 'The judge who presides at the trial of a cause shall, if available, rule on the motion for a new trial * * *.' The same practice exists in coram nobis proceedings. Murphy v. Daly, 1934, 206 Ind. 179, 188 N.E. 769; State ex rel. Witte v Smith, Judge, 1942, 220 Ind. 536, 45 N.E.2d 204; State ex rel. Meyer v. Youngblood, 1943, 221 Ind. 408, 48 N.E.2d 55. The reason is that he, better than any one else, is in a position to determine factual questions which arise in connection with a request for a new trial. Particularly is this true where the inquiry is as to the...