Davis v. State
| Decision Date | 22 March 1968 |
| Docket Number | No. 30915,30915 |
| Citation | 234 N.E.2d 853,250 Ind. 54,13 Ind.Dec. 456 |
| Parties | Robert DAVIS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John J. Dillon, Atty. Gen., Donald R. Ewers, Asst. Atty. Gen., DueJean C. Garrett, Deputy Atty. Gen., for appellee.
Appellant was charged, by indictment, filed in the Allen Circuit Court, March 25, 1965, with the crime of murder in the second degree.
The indictment, omitting formal parts and signatures, reads as follows, to-wit:
'The Grand Jury of the County of Allen, State of Indiana, upon their oath, do present that Robert Davis on the 6th day of March, 1965, in the County of Allen in the State of Indiana, unlawfully, feloniously, purposely and maliciously, but without premeditation, did kill and murder Clarence Miller, a human being, by then and there unlawfully, feloniously, purposely and maliciously, but without premeditation, shooting at and against the said Clarence Miller, with a certain .38 caliber revolver, loaded and charged with gunpowder and a bullet, and thereby mortally wounded the said Clarence Miller with said bullet, discharged and shot as aforesaid, from which mortal wound the said Clarence Miller then and there died, and so, the Grand Jurors, as aforesaid, upon their oath, as aforesaid, do say and charge that the said Robert May 17, 1965, appellant waived arraignment and pleaded not guilty to the charge embodied in the indictment. On the same day appellant waived his right to trial by jury.
Davis did then and there unlawfully, feloniously, purposely and maliciously but without premeditation, kill and murder the said Clarence Miller, in manner and form aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'
Trial was had to the court, without the intervention of a jury, beginning July 28, 1965, and continuing through July 30, 1965. Following the trial, the court found the appellant, Robert Davis, guilty of the offense of murder in the second degree as charged in the indictment.
Thereafter, on August 26, 1965, appellant filed his motion for a new trial, such motion, omitting formal parts and signatures, in pertinent part reads as follows:
'Comes now the defendant in the above entitled cause and respectfully moves the court for a new trial thereon and in support of said motion alleges and says:
1. That the finding of the court is contrary to law.
2. That the finding of the court is not sustained by sufficient evidence.
3. That an error of law occurred at the trial, in this, that the court erred in sustaining objections by the State of Indiana to questions put to defendant by his counsel on re-direct examination, which questions, objections, ruling of the court and offer to prove are set out in full in an exhibit, which exhibit is attached hereto, made a part hereof and marked Exhibit A.
WHEREFORE, the defendant prays the court for a new trial in said cause.
EXCERPT FROM TESTIMONY OF ROBERT DAVIS ON JULY 30, 1965
By Mr. Leas:
Q. You said something about your being scared?
A. I was scared.
Q. Do you have any condition of your body or organs or did you have at that time or since that time or before that time?
Q. Yes.
MR. HELMKE: Objection to the question. Just a minute. He said 'Do you have any condition of the organs' and I don't quite understand what the question is and whether it relates to physical health or mental health.
Q. Physical health. I'm asking if anything happens when he gets scared?
A. Yes, it does.
Q. What?
A. My heart.
Q. How long have you had a heart condition?
On August 26, 1965, appellant also filed a Petition for a Writ of Error Coram Nobis along with his motion for a new trial. Such petition reads in pertinent part as follows:
'Comes now the defendant, Robert Davis, and files his petition for a writ of error coram nobis and in support of his petition alleges and says:
1. That on the 6th day of March, 1965, at about 10 o'clock a.m. petitioner was apprehended and placed in custody by officers from the Fort Wayne Police Department, Fort Wayne, Indiana.
2. That at that time said officers knew or should have known that this investigation had been narrowed to, and in effect focused upon, this petitioner.
3. That at that time said officers commenced questioning petitioner regarding the facts of a certain alleged commission of a crime, namely homicide, with the sole and expressed purpose of eliciting a confession and statement from petitioner.
4. That during the time of the oral interrogation of petitioner, said petitioner did not have an attorney and did not make a request for same for the following reasons:
(a) Petitioner did not know the name of any attorney at law and did not know who he could call, contact or notify.
(b) Petitioner did not have funds available at that time to pay an attorney.
(c) Petitioner did not know he had any right whatsoever to have an attorney represent and advise him.
5. That the officer did not advise petitioner at any stage of the investigation, interrogation or preliminary procedures of his right to an attorney, his right to remain silent or of the fact that his statements, being then verbal and later written, could be used against him to convict him of murder in the second 6. That immediately after interrogation of petitioner by said officers, a typed statement was furnished and delivered to petitioner and he was requested to sign same; further, that he did in fact sign said statement which was admitted in evidence during the trial of the cause.
degree, or, finally, that upon conviction he could be sentenced to life imprisonment in the Indiana State Prison.
7. That during the time of the examination and signing of said written statement, petitioner did not have an attorney and did not make a request for same for the following reasons:
(a) Petitioner did not know the name of any attorney at law and did not know who he could call, contact or notify.
(b) Petitioner did not have funds available at that time to pay an attorney.
(c) Petitioner did not know he had any right whatsoever to have an attorney represent and advise him.
8. That petitioner has never been convicted of a crime before the conviction in the above entitled cause and therefore had had no experience in dealing with criminal law matters; further, that petitioner is semi-literate in that he has obtained a fourth-grade education only and is not familiar with his constitutional rights and privileges or matters of general knowledge in this particular field.
9. That thereafter, on the 11th day of March, 1965, Gordon Franke, M.D., Allen County Coroner, visited the Allen County Jail in the company of a stenographer and interrogated petitioner and during the course of said interrogation required said stenographer to take speed notes and thereafter type said notes into a statement and requested petitioner to sign same which petitioner did. That on said date and at said time, there was a statute in full force and effect, which statute is set out in full hereinbelow.
'WITNESSES--SUBPOENAS--POST MORTEM
All person desirous of being heard shall be examined as witnesses; and the coroner may cause witnesses to be summoned by subpoena, issued by him, and served by a constable, who shall answer all questions asked them, on oath, touching such death. When a surgeon or physician is required to attend such inquest and make a post mortem examination, the coroner shall certify such service to the Board of County Commissioners, who shall order the same paid out of the County Treasury.'
(2 RS 1852, Ch. 7, Section 8, p. 13.)
10. That said Allen County Coroner violated the petitioner's statutory rights in that the above cited statute was not complied with in any respect by said coroner.
11. That at the time of said coroner's interrogation, petitioner did not have an attorney and did not make a request for same for the following reasons:
(a) Petitioner did not know the name of any attorney at law and did not know who he could call, contact or notify.
(b) Petitioner did not have funds available at that time to pay an attorney.
(c) Petitioner did not know he had any...
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