Cassidy v. State, 25540.

• Decision Date: 04 October 1929
• Docket Number: No. 25540.,25540.
• Parties: CASSIDY v. STATE.
• Court: Indiana Supreme Court

201 Ind. 311

168 N.E. 18

CASSIDY

v.STATE.

No. 25540.

Supreme Court of Indiana.

Oct. 4, 1929.

Appeal from Fulton Circuit Court; Reuben R. Carr, Judge.

Ancil Cassidy was convicted of rape, and he appeals. Reversed, with instructions.Holman, Bernetha & Miller, of Rochester, for appellant.

Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State.

WILLOUGHBY, J.

This is a prosecution commenced by affidavit against the appellant for rape upon a female child 10 years of age. The affidavit charged that the act was committed on the 4th day of July, 1927, in Fulton county, state of Indiana. The affidavit was sworn to on the 5th day of July, 1927, and was filed in the Fulton circuit court on the 6th day of July, 1927, and the following proceedings had before Reuben R. Carr, regular judge of the Fulton Circuit Court:

The filing of the affidavit was approved by the judge on the 5th day of July, 1927, a bench warrant was ordered issued for the defendant returnable forthwith and the bond of defendant fixed at $25,000. The writ for arrest was returned by the sheriff as follows:

“This writ came to hand on the 6th day of July, 1927, and served as commanded by arresting Ancil Cassidy and bringing him before the Judge of the Fulton Circuit Court, done July 6, 1927.

“Fred Carr, Sheriff.”

The record continues further, and says the defendant is now in open court arraigned, and for plea says he is guilty as charged. Evidence heard, and the court finds defendant guilty as charged in the affidavit, that the defendant is 18 years and 4 months of age, and now sentences the defendant to the Indiana Reformatory for and during the remainder of his natural life.

On July 7, 1927, the same being in the vacation of the Fulton circuit court, the following proceedings were had and appear on the order book of the court:

“It appearing that the Trustees of the Indiana Reformatory refuse to take into their care and custody and accept from the Sheriff of Fulton County, Indiana, said defendant, and confine said defendant in said Indiana Reformatory, said defendant is now ordered committed to the Indiana State Prison under the judgment of this court, entered herein on July 6, 1927.”

The record shows the following further proceedings were had:

On August 4, 1927, in vacation, defendant by his attorney, H. M. Kipskind, files written motion and petition to set aside the judgment and for leave to withdraw plea of guilty and enter a plea of not guilty, and plea of insanity. The appellant's petition is as follows:

“Comes now the defendant, Ancil Cassidy, and moves and petitions the court to set aside the judgment heretofore rendered herein and to permit him to withdraw the plea of guilty heretofore entered herein, and to enter a plea of not guilty and also a plea of insanity to the affidavit and charge filed against him herein. And in support of this motion, said defendant files his own affidavit and the affidavits of Frank Utter, Frank Bright and Mearl Buchler.”

Appellant's affidavit is as follows:

“Ancil Cassidy, being duly sworn upon his oath, says that he is the defendant in the above entitled cause; Affiant further says that he is now 17 or 18 years of age; that he was born in the State of Kentucky; that for a number of years last past his mother has been dead, since he was four years old, and that his father has been since about January 1, 1927, and is now in McClelland, Arkansas, and that he has been working for and living among strangers most of the time since he was of the age of 16 years; that his education has been meager, having attended school ten years, closing in grade 5 of the common schools at Disko, Wabash county, State of Indiana; that on and prior to the 4th day of July, 1927, he was an employee of Frank Utter, a farmer residing four miles east of the town of Akron, in said county of Fulton, State of Indiana; that he was arrested there on the morning of July 5, 1927, but at the time he was taken into custody he did not know and understand the nature of the charge placed against him upon which he was arrested; nor did he know the penalty prescribed by law for the unlawful act with which he was charged and upon which he was arrested; that he was taken into custody by Sheriff Fred Carr and one Frank Bright; that said Frank Bright without explaining to him the nature of the charge placed against him, nor the penalty or punishment prescribed therefor, advised him to plead guilty, saying it would be easier on him to do so; that thereupon said Frank Utter was informed that he was accused of having had intercourse with one Helen Lytle, on the night of July 4, 1927, but the said Frank Utter was not informed of the nature of the charge placed against him, nor the punishment prescribed therefor, and without deliberation or understanding, the said Frank Utter advised him to plead guilty and told him that it would not avail him anything to employ an attorney to defend him against the charge placed against him; that he was immediately taken to jail at Rochester, the county seat of said county of Fulton, and there held without opportunity to consult with relatives; that he was induced by the statements and advice given to him by said Frank Utter and said Frank Bright to plead guilty, upon the hope that he would not be punished, except by fine, and was given to understand by them that it would be useless and of no avail to employ, or be represented by legal counsel or defend himself against said charge.

“Affiant further says that he was taken before the Fulton Circuit Court on the morning of July 6, 1927, by the sheriff of said county, and there arraigned upon the charge of rape; that he was not represented by counsel, nor did he consult with either friend or relative; that while the judge of said court read to him the charge placed against him and the punishment prescribed therefor, yet he did not comprehend nor understand the nature of said charge, nor understand nor appreciate the extent of the punishment prescribed therefor, and did not have opportunity to deliberate upon the same; that he did not understand that the court informed him that he would be given opportunity to employ counsel, nor that the court would appoint counsel to represent him, nor did he have money or means to employ counsel, and he acted upon the advice and statements made to him by said Frank Utter and said Frank Bright, believing that he had committed no unlawful act; that he would not, in fact, be punished by imprisonment; that it was unnecessary to have legal counsel to defend him; that thereupon he entered a plea of guilty in the hope that his punishment would be a small fine, and believing that it was the only course he had to pursue and did not realize the consequences of pleading guilty.

“Affiant further says that he is not guilty of the charge placed against him, upon which he has been convicted upon his plea of guilty and upon which he has been sentenced and that he did not have mental capacity sufficient to comprehend the nature and consequences of the act with which he was charged, and that his will power was impaired to such an extent that he was unable to control the impulse to commit crime upon said 4th day of July, 1927; that he had never been convicted of crime, nor was he ever before charged with the commission of any crime; that if permitted to defend he can show that he is not guilty of the crime charged against him.”

In the affidavit of Frank Bright, filed in support of appellant's petition, the affiant says, that he is and has been since January 1, 1927, a constable of Henry township, said county and state, and is 62 years of age; that he was present when the sheriff arrested and took into custody the said defendant, at the home of Frank Utter, on the 5th day of July, 1927; that this affiant then and there advised said defendant to plead guilty of the offense charged against him herein and told said defendant that it would go easier with him if he would plead guilty; that this affiant did not talk with or advise said defendant thereafter; that he was also present in the Fulton circuit court on the morning of July 6, 1927, at the time said defendant was arraigned and pleaded guilty; that defendant was not represented by counsel at said arraignment; that the judge of said court stated that he felt as though said boy should have an attorney, but that said judge did not ask said defendant if he was able to employ an attorney, nor did the said judge...