Gibson v. State, 867S75

• Decision Date: 14 October 1968
• Docket Number: No. 867S75,867S75
• Citation: 240 N.E.2d 812,251 Ind. 231,15 Ind.Dec. 479
• Parties: Louis Rudolph GIBSON, Appellant, v. STATE of Indiana, Appellant.
• Court: Indiana Supreme Court

Page 812

240 N.E.2d 812

251 Ind. 231

Louis Rudolph GIBSON, Appellant, v. STATE of Indiana, Appellant.

No. 867S75.

Supreme Court of Indiana.

Oct. 14, 1968.

Richard C. Johnson, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Dennis J. Dewey, Deputy Atty. Gen., for appellee.

JACKSON, Judge.

Appellant was charged by indictment with the crime of rape under the provisions of Acts 1941, ch. 148, § 3, as found in § 10--4201, Burns' 1956 Replacement. Such indictment, omitting formal parts, reads in pertinent part as follows:

'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that LOUIS RUDOLPH GIBSON on or about the 29th day of December, A.D. 1963, at and in the County of Marion and in the State of Indiana, did then and there unlawfully and feloniously make an assault upon one MARIAN LOU SURBER, then and there being a female child under the age of sixteen (16) years, to-wit: of the age of fifteen (15) years, and then and there not being the wife of the said LOUIS RUDOLPH GIBSON and did then and there unlawfully and feloniously, carnally know her, the said MARIAN LOU SURBER, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

Appellant entered a plea of not guilty; thereafter, on May 10, 1967, trial by the court was had and the court found the defendant guilty as charged and ordered a presentence investigation report filed by the Probation Department. Such report was filed May 19, 1967, and showed among other things that appellant had no previous record of arrests or convictions, thereupon the court sentenced appellant to the Indiana State Prison for one (1) to ten (10) years.

Thereafter appellant filed his Motion for New Trial, such motion, omitting heading, formal parts, signatures and jurat, in pertinent part reads as follows:

'The Defendant in the above entitled cause moves the Court for a new Trial thereon for the following reasons to-wit:

1. That the decision or finding of the Court is not sustained by sufficient evidence.

2. That the decision or finding of the Court is contrary to law.

3. That this Defendant was, by accident and surprise, which ordinary prudence could not have foreseen and guarded against, prevented from having a fair trial of said cause in this:

a. That he was represented by counsel that was completely and utterly negligent, incompetent and acted fraudulently and in bad faith towards his client in the matter of his employment in an attorney-client relationship, as follows:

(1) That Defendant's Attorney advised this Defendant, who is a layman, and who had never been in Court before, that the case would be 'thrown out' and 'never come to trial.'

(2) That he did call the Defendant and members of his family on numberous occasions, stating 'send me more money (in various amounts) so that I can take care of seeing that the case is thrown out.'

(3) That the Attorney called the Defendant and requested and received money in order to conduct investigations in regard to the case through private investigators, which investigations, to the Defendant's knowledge, were in fact never conducted, and were not used at the time of trial.

(4) That the total time the Defendant's Attorney spent in interviews and conferences with his client over a 3 1/2 year period was not more than three hours and a great portion of this time was by telephone conversations.

(5) That at the time of trial, the Defendant's Attorney's services were worthless, either because of his ignorance or negligence, and that he failed to call any witnesses for purposes of testifying in the defense of the Defendant to impeach testimony presented by the State, when such witnesses were available with impeaching testimony.

(6) That as late as the date of trial, and, in fact, after the trial, the Attorney told the Defendant and members of his family 'don't worry, the Defendant is not going to the penitentiary.'

(7) That the Defendant's Attorney, who should have known the serious nature of the crime charged, and of his client's unfamiliarity with legal procedure, induced his client to pay money upon fraudulent representations that by payment of the same the case would 'be thrown out.'

(8) That on many occasions the Attorney stated to the Defendant 'don't worry, the Judge and I are close personal friends.'

(9) That due to the Defendant's counsel's indifference, ignorance and negligence, and failure to prosecute the Defendant's cause properly, the Defendant was denied a fair trial.

WHEREFORE, the Defendant prays the Court for a new trial for said cause.'

Such motion was overruled and appeal bond set in the sum of $3,000.00.

Appellant's Assignment of Errors is the single specification:

'The Court erred in overruling appellant's motion for new trial.'

The evidence most favorable to the State may be summarized as follows. On the night of December 29, 1963, prosecuting witness attended Charity Tabernacle on Tibbs Avenue in the city of Indianapolis, Marion County, Indiana, with a daughter of the appellant, thereafter accompanying the daughter to appellant's home. After viewing...