Fluty v. State

• Decision Date: 27 February 1947
• Docket Number: 28254.
• Citation: 71 N.E.2d 565,224 Ind. 652
• Parties: FLUTY v. STATE.
• Court: Indiana Supreme Court

71 N.E.2d 565

224 Ind. 652

FLUTY v. STATE.

No. 28254.

Supreme Court of Indiana

February 27, 1947

Thomas W. Lindsey, of Evansville, for appellant.

James A. Emmert, Atty. Gen., Frank E. Coughlin, 1st Asst. Atty Gen., and George W. Hadley, Deputy Atty. Gen., for appellee.

GILKISON Chief Justice.

Appellant with another, was charged and tried in the Vanderburgh Circuit Court, with the crime of robbery and of inflicting a physical injury with a 'blunt instrument' while robbing one, McDowell. He was tried by the court on September 14, 1945, found guilty of robbery as charged in the affidavit, and sentenced as provided by law, § 10-4101 Burns' 1942 Replacement, from which no appeal has been taken. After proper showing by the defendant, the court appointed him an attorney at public expense, who in the record is designated 'public defender,' to present his defense and this attorney served him throughout the trial. On April 11, 1946 appellant by another attorney, filed a petition for writ of error coram nobis.

The petition for writ of error coram nobis is 'for the reason that petitioner had only a perfunctory defense made for him and not an adequate one at the former trial thereof.' The negligence and carelessness of the attorney alleged in substance is:

(1) That he did not examine the affidavit to ascertain: if an answer in abatement should be filed, or

(2) If it would withstand a motion to quash.

(3) That he negligently waived an arraignment and entered a plea of not guilty.

(4) That he did not inform the defendant of the nature of the affidavit and the punishment provided by law.

(5) That the affidavit did not describe the 'blunt instrument' used; nor that its 'name and character was unknown to affiant.'

(6) That he waived defendant's right to be tried by a jury without consulting defendant.

(7) That petitioner could have proven a good reputation for honesty, but his attorney negligently failed to present such proof for him.

(8) That his attorney visited and consulted with him only once before his trial.

(9) That petitioner was not asked if he had anything to say why sentence should not be pronounced.

(10) That his attorney failed to file a motion for new trial for petitioner.

The petition was put at issue by an answer agreeable with the rules of this court.

Rule 2-40 of this court provides for appeals in coram nobis proceedings, and among other things provides 'The sufficiency of the pleadings and of the evidence to entitle the petitioner to the writ will be considered upon an assignment of error that the order is contrary to law.'

No motion for new trial is contemplated in such proceeding. We shall, therefore, ignore the questions attempted to be presented by such motion. However, all questions are presented by the assignment 'that the order of the Vanderburgh Circuit Court denying the petition of the defendant, Steve Fluty, for writ of error coram nobis is contrary to law.'

It may be said that the minimum duties of an attorney are set forth in § 4-3608, Burns' 1946 Replacement. Among such duties therein enumerated we find:

'Eighth. Never to reject, from any consideration personal to himself, the cause of the defenseless or oppressed.'

'Fifth. To maintain inviolate the confidence, and, at every peril to himself, to preserve the secrets of his client.' Acts 1881, Spec.Sess. Ch. 38,§ 836, p. 240; 1937 Ch. 88, § 1, p. 452.

We think the rule is quite general that attorneys are never competent to testify as to confidential communications, without the consent of the party making them.

In Works Indiana Practice, Pleading and Forms Vol. 2, § 1216, p. 268 the author says:

'An attorney is not incompetent to testify. He may be called to prove any fact not communicated to him as an attorney, or advice given by him as such.

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'Statements made by a client to his legal adviser are privileged, though no action is at the time pending or contemplated concerning the matter of which such statement is made, if it appears that the relation of attorney and client exists, and that the statement was made to him in his professional character, with a view to legal advice, which, as an attorney, it was his duty to give.

'The client, as well as the attorney, is protected, and neither can be required to disclose what occurred at a consultation between them.'

See: Borum v. Fouts, 1860, 15 Ind. 50, 53, 54; Bigler v. Reyher, 1873, 43 Ind. 112; Oliver v. Pate, 1873, 43 Ind. 132, 140, 141; Scranton v. Stewart et al., 1875, 52 Ind. 68, 79 et seq.; George v. Hurst, 1903, 31 Ind.App. 660, 663, 664, 68 N.E. 1031.

A question presented by the record before us is: Did the appellant give his consent by word or act for his attorney to divulge the confidential communications he had made to said attorney while defending him in the original robbery action?

In Oliver v. Pate, supra, 43 Ind. at page 143, this court, speaking by Osborn, J. said: 'If the party voluntarily testifies as a witness to confidential communications made to his attorney, he thereby destroys the privileged character of the communication and consents that the attorney may be a witness and testify in relation to the same communication, and state all that was said on that subject. We do not decide that he gives such consent by testifying in the action generally. It is because he testifies and voluntarily discloses the confidential communication, that he waives the privilege and consents that the attorney may be a witness against him, and not because he testifies as a witness in the cause.'

Appellant testified that he told his attorney that he 'wanted a jury trial' and that 'his attorney replied that he could talk to one man better than he could talk to twelve.' He further testified that just after the trial, in the ante room he told his attorney to get him a new trial, and the attorney told him he would do so. The next day he again told his attorney to get him a new trial and he promised him he would; that he would do all that he could. He further testified that he asked his attorney to get the two women who operated the '41 Inn' (presumably as witnesses for him) and the attorney told him they were not needed.

Thereafter, over the objections of appellant, the attorney testified among other things as follows: 'I asked them (Fluty and his co-defendant) if they wanted a jury trial or a court trial.' He said he explained the difference to them and that if they had a jury trial it would probably be in September or October on account of the crowded condition of the court's docket. 'They both decided they wanted a court trial, and they wanted an immediate trial or as soon as I could get the court to set the case when the docket permitted.' He further testified that none of petitioner's family ever requested him to have a jury to try petitioner; that petitioner never requested him to have any additional witnesses subpoenaed. After the trial, both defendants asked if they could get a new trial, and by jury, and the attorney told them he would have to study the evidence before he could say. Petitioner's mother later also asked if a new trial could be procured for him, and his wife later made a similar inquiry. The attorney informed each of them that he 'saw no opportunity of the court granting a motion for new trial.'

A majority of the court believe that the filing of this coram nobis action in the trial court was a direct attack against the professional integrity of the attorney, and gave him a right to defend his conduct as appellant's attorney. There can be no doubt, however, that when appellant took the witness stand and himself testified as to his recollections concerning the confidential...