Doench v. State, 13615.

• Decision Date: 29 March 1929
• Docket Number: No. 13615.,13615.
• Citation: 89 Ind.App. 52,165 N.E. 777
• Parties: DOENCH v. STATE.
• Court: Indiana Appellate Court

89 Ind.App. 52

165 N.E. 777

DOENCH

v.STATE.

No. 13615.

Appellate Court of Indiana, in Banc.

March 29, 1929.

Appeal from Dubois Circuit Court; John Dillon, Judge.

Albert Doench was convicted of manufacturing intoxicating liquor, and he appeals. Affirmed.

R. W. Armstrong, of Evansville, for appellant.

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

McMAHAN, P. J.

Appellant, in stating the nature of the action, says it is a prosecution against him on an affidavit filed in the city court of the city of Huntingburg, charging him with manufacturing intoxicating liquor, that following his arrest he entered a plea of guilty, and was thereupon fined $500, and sentenced to the state farm for a period of six months, from which judgment he appealed to the circuit court of Dubois county. Inasmuchas appellant has not, in his brief, set out the affidavit on which he was prosecuted, nor any part of the record of the proceedings in the city court, we shall assume appellant, by such statement of the nature of action, has correctly stated what the issues were in the circuit court, since it appears that the judgment in the circuit court is based upon the affidavit filed in the city court and appellee's plea of guilty entered in that court. After the appeal to the circuit court, appellant filed his application for leave to withdraw his plea of guilty, which application is in substance as follows: That he was unacquainted with court and court proceedings, he never having been in a court room before; that he was arrested at night; that he did not have access to an attorney; that he was not acquainted with any lawyer in Dubois county; at the time of arrest he was living in an out of way secluded locality near the town of Holland; that there were no lawyers at Holland; that, on being arrested, he was taken before the city court, where he was asked if he wanted a lawyer; that he did not know of any lawyer whose services he could procure; that, before being arraigned, he was placed in the city jail, and had no chance to procure a lawyer; that he was arraigned about 9 o'clock p. m.; that the mayor and the prosecuting officers in charge promised him if he would plead guilty the court would impose the least punishment for the violation of the law known to the statute; that, not knowing his rights and being greatly excited, he did not have the free and untrammeled use of his mind, and did not know what was the best course to pursue. The prosecuting attorney filed a denial to this application, and the court, after hearing evidence upon the question, refused to allow the plea of guilty to be withdrawn, refused appellant's request for a jury, found him guilty, and fixed his punishment at a fine of $300, and imprisonment in the state farm for a period of 90 days.

[1][2][3] The only question for decision relates to the action of the court in refusing appellant leave to withdraw his plea of guilty entered in the city court. It is the law in this jurisdiction that, where there has been a plea before a justice of the peace, no further plea is required in the circuit court on appeal. Johns v. State, 104 Ind. 557, 4 N. E. 153;Eisenman v. State, 49 Ind. 520;Cline v. State, 25 Ind. App. 331, 58 N. E. 210. And such plea cannot be withdrawn without leave of court. Peters v. Koepke, 156 Ind. 35, 59 N. E. 33. Ordinarily the granting of leave to withdraw a plea of guilty is within the sound discretion of the trial court. Where it appears that the trial court has abused its discretion in denying an application to withdraw a plea of guilty, the court of appeal will review the ruling, but, when it appears that the ruling on such an application is based on conflicting evidence, the appellate tribunal will not disturb the conclusion reached by the trial court. Atkinson v. State, 190 Ind. 1, 128 N. E. 433.

[4] Appellant testified that he had lived on a farm near Holland when arrested, had just reached home from Evansville; his wife and child and John Niehaus were with him; Mr. Marshall and three other men were there when he was arrested; was taken to Huntingburg; Marshall said, if he wanted to plead guilty, they would have his trial at Huntingburg, otherwise they would take him to Indianapolis; was not acquainted with court; had never been in a court before, and did not know how they conducted business; got to Huntingburg about 9 o'clock; said they would try him at Indianapolis; that he would get the full extent of the law; figured that, if tried at Indianapolis, he would not get to see his wife and child; that, if tried at Huntingburg, they would give him the least sentence they could; that he would get a jail sentence and be in Jasper where his wife could see him; that it made him scared; asked one of the men, believe it was Marshall, about a lawyer; they let him sit in the automobile until they got the city marshal, when they took him to the jail; took him to the city hall, called one of the men, and asked him about an attorney; he said he would not need...