Hicks v. State, 26849.

Decision Date01 February 1938
Docket NumberNo. 26849.,26849.
Citation12 N.E.2d 501,213 Ind. 277
PartiesHICKS v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

On petition for leave to file a petition for a writ of error coram nobis.

Petition denied.

For former opinion, see 11 N.E.2d 171.Appeal from Franklin Circuit Court; Roscoe C. O'Byrne, Judge.

Virgil J. McCarty, of Brookville, Stephens L. Blakely, of Covington, and Owen S. Boling, of Indianapolis, for appellant.

Omer Stokes Jackson, Atty. Gen., Chas. A. Lowe, of Lawrenceburg, and Glenn Steckley, Deputy Atty. Gen., for the State.

HUGHES, Judge.

The appellant before the petition for a rehearing has been passed upon files a petition for permission of this court to file a petition for a writ of error coram nobis in the trial court, the Franklin circuit court, and for a further stay of execution.

It is alleged in the petition that in the motion for a new trial on the grounds of newly discovered evidence that the affidavits of Carolyn Broerman, William Kuhlman, and John Poholsky, were filed after the court had ruled on the motion for a new trial; that said affidavits were not considered by the trial court, but that they were included as part of the record on appeal and considered by this court; that he now desires to file a petition for a writ of error coram nobis on the ground of newly discovered evidence and will file in support of said petition the affidavits of the above-named parties.

Although the affidavit of the three parties named were not properly in the record on appeal, this court, as the opinion states, considered these affidavits and also counter affidavits filed by the State. Kuhlman and Poholsky are now dead, having been electrocuted for the murder of Miller. After they were sent to the Indiana State Prison they made statements indicating that their testimony given at the trial of Hicks, as to the part he took in the murder of Miller, was false. The affidavit of Carolyn Broerman, sister of William Kuhlman, contains statements made by him which supports, in a general way, the affidavit made by Kuhlman.

The writ of error coram nobis is in the nature of a motion for a new trial, and, if granted, has the same effect. And as said in the case of Stephenson v. State, 205 Ind. 141, 179 N.E. 633,186 N.E. 293, 295, ‘In so far as applicable, the sufficiency of the petition will be tested by the rules applicable to motions for a new trial because of newly discovered evidence.'

A new trial will not be granted on newly discovered evidence which...

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27 cases
  • State v. Rivenbark, 55
    • United States
    • Maryland Court of Appeals
    • November 20, 1987
    ... ... State, 187 Ark. 88, 92, 58 S.W.2d 434, 435 (1933); People v. Saling, supra, 7 Cal.3d at 852, 500 P.2d at 615, 103 Cal.Rptr. at 703; Hicks v. State, 213 Ind. 277, 287-288, 11 N.E.2d 171, 175 (1937), cert. denied, 304 U.S. 564, 58 S.Ct. 951, 82 L.Ed. 1531 (1938); State v. Kidd, 239 ... ...
  • Kestler v. State
    • United States
    • Indiana Supreme Court
    • April 6, 1949
    ...has not been denied. Thompson v. State, 1946, 224 Ind. 290, 293, 66 N.E.2d 597; Hicks v. State, 1938, 213 Ind. 277, 302, 11 N.E.2d 171, 12 N.E.2d 501; Brown v. State, 206 Ind. 223, 189 N.E. 133; Mack v. State, 1932, 203 Ind. 355, 361, 362, 180 N.E. 279, 83 A.L.R. 1349; McCutcheon v. State, ......
  • Kallas v. State
    • United States
    • Indiana Supreme Court
    • February 4, 1949
    ...of appeals. See Thompson v. State, 1946, 224 Ind. 290, 293, 66 N.E.2d 597; Hicks v. State, 1938, 213 Ind. 277, 302, 11 N.E.2d 171, 12 N.E.2d 501; Brown v. State, 206 Ind. 223, 189 N.E. 133; Mack v. State, 1932, 203 Ind. 355, 361, 362, 180 N.E. 279, 83 A.L.R. 1349; McCutcheon v. State, 1927,......
  • Smith v. United States
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • March 27, 1958
    ...during the time the owner was away. 4 See, e. g., Ivey v. State, 4 Ga.App. 828, 62 S.E. 565; Hicks v. State, 213 Ind. 277, 11 N.E.2d 171, 12 N.E.2d 501; People v. Klyczek, 307 Ill. 150, 138 N.E. 275; State v. Westcott, 130 Iowa 1, 104 N.W. 341; State v. Raftery, 252 Mo. 72, 158 S.W. 585; He......
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