Cook v. State

• Decision Date: 03 November 1941
• Docket Number: 27549.
• Parties: COOK v. STATE.
• Court: Indiana Supreme Court

37 N.E.2d 63

219 Ind. 234

COOK v. STATE.

No. 27549.

Supreme Court of Indiana

November 3, 1941

Appeal from Jennings Circuit Court; Hubert E Wickens, Special judge.

Owen S. Boling and Louis B. Ewbank, both of Indianapolis, for appellant.

George N. Beamer, Atty. Gen., and James K. Northam and Walter O Lewis, Deputy Attys. Gen. for appellee.

FANSLER Chief Justice.

The appellant was convicted of first degree murder and sentenced to life imprisonment. There was no appeal. Six years later appellant filed a petition for a writ of error coram nobis. To this petition the state filed a demurrer, which was overruled, and judgment was entered granting the petition and a new trial was ordered. The state prayed an appeal. A few days later, and at the same term of court, the following memorandum was made in the court's bench docket: 'State of Indiana withdraws pray for appeal and files answer in general denial. Hearing set for Feb. 14-1938,' and on the same day an order was entered on the order book to the effect that the prosecuting attorney 'now prays the court to withdraw the judgment heretofore entered in this cause which judgment is now by the court withdrawn,' and further that the state asked to withdraw the prayer for appeal, which was granted, and that the state filed answer in general denial, which answer is set out in full in the order book, and that: 'The court notes the filing of the Respondent's answer in general denial and upon the issues thus formed sets the cause down for trial, on the 14th day of February, 1938.' The order book was signed by the special judge then presiding. Afterward the state procured a change of judge. At a subsequent term the appellant filed a motion for a nunc pro tunc entry 'correcting the Jennings Circuit Court Civil Order Book Entry Record in said cause to correspond with the Minutes of the Court in said cause as the same now appear and have appeared upon the Jennings Circuit Court Criminal Docket Book in said cause herein, which said Minutes of said Court are true, correct and complete in all respects * * *.' The purpose of the proposed nunc pro tunc entry was to strike out that part of the order book entry above referred to which set aside the judgment sustaining the petition for a writ of error coram nobis and granting a new trial. Affidavits were submitted as evidence in support of this motion, and the motion was denied. This appeal is taken from the action of the court in denying the motion to change the record nunc pro tunc.

The parties agree that the record may only be changed after term nunc pro tunc upon evidence 'consisting of some written memorial or record, but that when the fact that a judgment was rendered, or some other action taken, is so established, parol proof may be resorted to for the purpose of showing the character, terms, and conditions of the action taken.' Illinois Pipe Line Co. v. Fitzpatrick, 1934, 207 Ind. 1, 5, 188 N.E. 771, 772. The controversy is as to the sufficiency of the evidence, which the appellant claims conclusively shows that he is entitled to the relief prayed.

The affidavit of the special judge who made the...