Fluty v. State, No. 28254.

Docket NºNo. 28254.
Citation71 N.E.2d 565, 224 Ind. 652
Case DateFebruary 27, 1947
CourtSupreme Court of Indiana

224 Ind. 652
71 N.E.2d 565

FLUTY
v.
STATE.

No. 28254.

Supreme Court of Indiana.

Feb. 27, 1947.


Appeal from Vanderburgh Circuit Court; Nat H. Youngblood, judge.

Steve Fluty was convicted of the crime of robbery, and he filed a petition for a writ of error coram nobis. From a judgment denying the petition, he appeals.

Affirmed.

[71 N.E.2d 566]

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.

[71 N.E.2d 567]

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.


* * *

‘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...

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28 practice notes
  • State ex rel. McManamon v. Blackford Circuit Court, No. 28717
    • United States
    • Indiana Supreme Court of Indiana
    • December 7, 1950
    ...to the effect that where a constitutional question is involved it is generally assumed that coram nobis will lie. Fluty v. State, 1947, 224 Ind. 652, 71 N.E.2d 565; State ex rel. Kunkel v. LaPorte Circuit Court, 1936, 209 Ind. 682, 200 N.E. 614; Rhodes v. State, 1927, 199 Ind. 183, 156 N.E.......
  • Schmittler v. State, No. 28620
    • United States
    • Indiana Supreme Court of Indiana
    • June 22, 1950
    ...is waived when the patient institutes an action for malpractice. This principle is squarely decided in Fluty v. State, 1947, 224 Ind. 652, 71 N.E.2d 565, in a learned opinion by my brother Gilkison. The court there said: 'A majority of the court believe that the filing of this coram nobis a......
  • Harrison v. State, No. 202
    • United States
    • Court of Appeals of Maryland
    • October 7, 1975
    ...v. Ottenstror, 127 Cal.App.2d 104, 110, 273 P.2d 289 (1954); Key v. State, 235 Ind. 172, 174-177, 132 N.E.2d 143 (1956); Fluty v. State, 224 Ind. 652, 659, 71 N.E.2d 565 (1947); Oliver v. Pate, 43 Ind. 132, 142-43 (1873); Swanson v. Domming, 251 Minn. 110, 118, 86 N.W.2d 716 (1957) (citing ......
  • Cantwell v. Cantwell, No. 29305
    • United States
    • Indiana Supreme Court of Indiana
    • June 17, 1957
    ...566; 31 Am.Jur. p. 323, § 802. No motion for a new trial is contemplated in an action for writ of error coram nobis. Fluty v. State, 1947, 224 Ind. 652, 71 N.E.2d 565; Lucas v. State, 1949, 227 Ind. 486, 86 N.E.2d 682; State ex rel. Blanton v. Smith, 1949, 229 Ind. 1, 86 N.E.2d 84. The hist......
  • Request a trial to view additional results
28 cases
  • State ex rel. McManamon v. Blackford Circuit Court, No. 28717
    • United States
    • Indiana Supreme Court of Indiana
    • December 7, 1950
    ...to the effect that where a constitutional question is involved it is generally assumed that coram nobis will lie. Fluty v. State, 1947, 224 Ind. 652, 71 N.E.2d 565; State ex rel. Kunkel v. LaPorte Circuit Court, 1936, 209 Ind. 682, 200 N.E. 614; Rhodes v. State, 1927, 199 Ind. 183, 156 N.E.......
  • Schmittler v. State, No. 28620
    • United States
    • Indiana Supreme Court of Indiana
    • June 22, 1950
    ...is waived when the patient institutes an action for malpractice. This principle is squarely decided in Fluty v. State, 1947, 224 Ind. 652, 71 N.E.2d 565, in a learned opinion by my brother Gilkison. The court there said: 'A majority of the court believe that the filing of this coram nobis a......
  • Harrison v. State, No. 202
    • United States
    • Court of Appeals of Maryland
    • October 7, 1975
    ...v. Ottenstror, 127 Cal.App.2d 104, 110, 273 P.2d 289 (1954); Key v. State, 235 Ind. 172, 174-177, 132 N.E.2d 143 (1956); Fluty v. State, 224 Ind. 652, 659, 71 N.E.2d 565 (1947); Oliver v. Pate, 43 Ind. 132, 142-43 (1873); Swanson v. Domming, 251 Minn. 110, 118, 86 N.W.2d 716 (1957) (citing ......
  • Cantwell v. Cantwell, No. 29305
    • United States
    • Indiana Supreme Court of Indiana
    • June 17, 1957
    ...566; 31 Am.Jur. p. 323, § 802. No motion for a new trial is contemplated in an action for writ of error coram nobis. Fluty v. State, 1947, 224 Ind. 652, 71 N.E.2d 565; Lucas v. State, 1949, 227 Ind. 486, 86 N.E.2d 682; State ex rel. Blanton v. Smith, 1949, 229 Ind. 1, 86 N.E.2d 84. The hist......
  • Request a trial to view additional results

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