Callahan v. State, 30807
| Docket Nº | No. 30807 |
| Citation | 247 Ind. 350, 214 N.E.2d 648 |
| Case Date | March 09, 1966 |
| Court | Supreme Court of Indiana |
Page 648
v.
STATE of Indiana, Appellee-Respondent.
Rehearing Denied April 27, 1966.
[247 IND 351]
Page 649
William C. Erbecker, Indianapolis, for appellant-petitioner.John J. Dillon, Atty. Gen., Donald R. Ewers, Asst. Atty. Gen., Virginia Dill McCarty, Deputy Atty. Gen., for appellee-respondent.
ARTERBURN, Judge.
The appellant Callahan has filed a verified petition for a writ of certioari in which he asks that we review the action of the trial court in denying permission to file a belated motion for a new trial in a criminal case in which he was convicted of murder in the first degree. The conviction was affirmed by this Court on appeal. See Callahan v. State (1964), Ind., 201 N.E.2d 338.
His conviction resulted following a trial in which it was revealed he had killed a police officer in cold blood after he had been arrested fleeing in an automobile from the scene of a burglary. At the time of his arrest he thrust a gun at the officer and said: 'Forget it, you're dead' and proceeded to fire several shots at close range into the body of the officer. The evidence clearly established his guilt.
He files his petition for certiorari in this Court, consisting of nearly 85 pages, accompanied by a brief of 125 pages. Most of it is taken up with the recital of various alleged errors occurring during the trial, such as erroneous instructions, a defective indictment, objections to evidence introduced, disputing the statement of witnesses and claiming they committed perjury, among other things. We have gone through this voluminous petition, comparing it with what took place in the trial and what was
Page 650
set forth in the motion for a new trial, the overruling of which was appealed to this Court and affirmed. We find that practically everything was or could have been previously presented for the trial court's consideration and our consideration on appeal.As we look upon petition here, it is basically a situation, as happens so often, where a party sees fit to try a law suit in a certain fashion, omitting to make objections for reasons that might seem sound at the time, and then after losing the [247 IND 352] law suit, uses such failures or such maneuvering as grounds for a new trial. In this case counsel was employed by the defendant and his family and relatives at their own expense. They had an attorney of their own choosing. Now, new counsel employed for this petition of certiorari, claims that such trial counsel acted incompetently, and sets out in detail all the alleged things that the trial counsel should have done in retrospect. 1 It is stated now that the petitioner has finally employed 'a competent attorney to represent and advise him in this cause.'
This question is presented frequently to our Court after a defendant has been convicted. It is easy to second-guess a trial attorney after the losing of a case, and to claim he should have acted differently.
Petitioner contends he was denied a fair trial by reason of newspaper and television publicity, etc. These are all matters that were considered in the trial court and on appeal in the original case. It is interesting to note, however, that now the petitioner contends also that he was denied due process on the complaint that the public generally was excluded from his trial because only a limited number of persons were permitted in the court room. No objections were made during the trial on either of these inconsistent claims made now. As we stated previously, regardless of what an attorney does in a trial in a criminal case, it seems he can never satisfy his client if he loses the case.
It is contended here the statute under which the petitioner was convicted was unconstitutional because it was discriminatory in that it prescribed the death penalty in homicides committed in the perpetration of a burglary, but not in the perpetration of kidnapping, bank [247 IND 353] robbery, etc. This question could have been raised properly in the trial court in the beginning if the trial attorney had though there was any merit. We think the trial attorney was intelligent enough and competent enough not to raise such a question. The Legislature has some discretion in this state with reference to fixing crimes and the punishment thereof. That is one of the fundamentals of our government, and it hardly needs citations of authority for such statement.
A further contention is now made that the defendant was confined for eleven months awaiting trial and that Burns' Ind.Stat.Anno. Sec. 9-1403 (1956 Repl.)...
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Wilburn v. State, 22A01-8607-PC-186
...due process requires all parties to act promptly and diligently in bringing matters before the court, citing Callahan v. State (1966), 247 Ind. 350, 214 N.E.2d 648, [cert. denied (1966), 385 U.S. 942, 87 S.Ct. 305, 17 L.Ed.2d In the case at bar, the trial court also ruled the State met its ......
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Brown v. State, 30555
...different course.' Hendrickson v. State (1954), 233 Ind. 341, 344, 118 N.E.2d 493, 495. [248 Ind. 17] In Callahan v. State (1966), Ind., 214 N.E.2d 648, 651, 652, we 'Now, however, the petitioner, having lost his case, desires to use such choice as a reason and grounds for urging that his a......
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State ex rel. Haberkorn v. DeKalb Circuit Court, s. 668S91
...Relator is not in position to urge the alleged inadequacy of time for the hearing in the case on appeal; Callahan v. State (1966), Ind., 214 N.E.2d 648. In the case on appeal the relators have been given ample time to file a transcript, to amend their petition, to raise constitutional quest......
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Layton v. State, 268S33
...must show that the delay injured him in some fashion and prevented him from having a fair trial. Callahan v. State (1966), Ind., 214 N.E.2d 648. [251 Ind. 214] Finally the appellant claims error because the court refused to give instruction number 39 which quoted the Constitution of the Sta......
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Wilburn v. State, 22A01-8607-PC-186
...due process requires all parties to act promptly and diligently in bringing matters before the court, citing Callahan v. State (1966), 247 Ind. 350, 214 N.E.2d 648, [cert. denied (1966), 385 U.S. 942, 87 S.Ct. 305, 17 L.Ed.2d In the case at bar, the trial court also ruled the State met its ......
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Brown v. State, 30555
...different course.' Hendrickson v. State (1954), 233 Ind. 341, 344, 118 N.E.2d 493, 495. [248 Ind. 17] In Callahan v. State (1966), Ind., 214 N.E.2d 648, 651, 652, we 'Now, however, the petitioner, having lost his case, desires to use such choice as a reason and grounds for urging that his a......
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State ex rel. Haberkorn v. DeKalb Circuit Court, s. 668S91
...Relator is not in position to urge the alleged inadequacy of time for the hearing in the case on appeal; Callahan v. State (1966), Ind., 214 N.E.2d 648. In the case on appeal the relators have been given ample time to file a transcript, to amend their petition, to raise constitutional quest......
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Layton v. State, 268S33
...must show that the delay injured him in some fashion and prevented him from having a fair trial. Callahan v. State (1966), Ind., 214 N.E.2d 648. [251 Ind. 214] Finally the appellant claims error because the court refused to give instruction number 39 which quoted the Constitution of the Sta......