Hoelscher v. State

• Decision Date: 30 November 1944
• Docket Number: 28015.
• Parties: HOELSCHER v. STATE.
• Court: Indiana Supreme Court

57 N.E.2d 770

223 Ind. 62

HOELSCHER v. STATE.

No. 28015.

Supreme Court of Indiana

November 30, 1944

Appeal from Allen Circuit Court; Wm. H. Schannen Judge.

Oscar B. Thiel, of Gary, for appellant.

James A. Emmert, Atty. Gen., Frank Hamilton, 1st Deputy, Atty Gen., and Frank E. Coughlin, Deputy Atty. Gen., for appellee.

FANSLER Judge.

In December, 1943, the appellant entered a plea of guilty to an indictment charging him with murder in the first degree and was sentenced to life imprisonment. In March, 1944, he filed a motion to vacate the judgment and for leave to withdraw his plea of guilty and enter a plea of not guilty. The State filed an answer, and, upon the issue thus joined, there was a hearing and judgment denying appellant's motion. This ruling is assigned as error.

The original judgment of conviction recites in part: '* * * said Defendant being asked first by the Court, if he knows the nature and consequences of the crime of which he is charged and if he has or desires counsel and being advised by the Court of his right to be represented by counsel either of his own choice or by appointment by the Court, the Defendant thereupon informs the Court that he does not desire counsel and that he does know the nature and consequences of the crime of which he is charged, and the said Defendant being arraigned pleads guilty * * *.' The appellant's verified motion to withdraw his plea alleges that he was arrested in Des Moines, Iowa, and brought to Fort Wayne three days before he entered his plea of guilty, and that prior to the entry of his plea of guilty the court did not appoint an attorney to represent him; that he was nineteen years of age and was unable to comprehend the gravity of the proceedings, and that he was not informed by the court that an attorney would have to be appointed for him whether he had funds or not; that he was entirely without funds, had no relatives or friends, and did not know what his rights were; that he was not informed of his right to a trial by jury, and that it was the duty of the State to prove him guilty beyond a reasonable doubt, and that he could not be compelled to give evidence against himself; that he was not advised that in case of a jury trial it was the duty of the jury to determine the punishment, and that upon the indictment returned against him he could be found guilty of either murder in the first degree, second degree, or manslaughter; that he was not informed of the punishment for manslaughter, but only of the punishments for murder in the first and second degrees; that he is not guilty of the offense for which he was convicted; that he was not advised that in a trial for murder he could allege and prove justifiable homicide by self-defense; that he has been a member of the Armed Forces of the United States, a private in the Marine Corps; that he contracted malaria fever and was discharged, and that he was still under the influence of his illness at the time of the offense, and that he did not have full possession of his physical and mental faculties. No evidence was introduced to support these allegations save the verified petition itself.

The State's answer was supported by the affidavit of the prosecuting attorney, the sheriff, a deputy sheriff, a member of the Indiana State Police Force, and by a verified transcript of evidence taken by the court reporter at the time of the plea of guilty. It appears from the affidavits that the sheriff arrested the defendant in Iowa and brought him to a State Police post in Indiana; that he was then 'advised by the officers of his constitutional rights and was asked if he cared to make a statement.' He readily admitted the killing and described the crime in detail. He was then taken to the Allen County jail. No promise or duress was used to induce him to admit his guilt. Upon arrival in Fort Wayne the prosecuting attorney was called and informed that the defendant wished to enter a plea of guilty to murder in the first degree. The prosecuting attorney inquired of the defendant as to his desire to enter a plea of guilty and whether he wanted the services of an attorney, and the defendant said he did not have an attorney and did not want one, but wanted to enter a plea of guilty and get on his way as soon as possible. The prosecuting attorney said he would immediately call the grand jury into session and have an indictment returned. The prosecuting attorney accompanied the sheriff and police officers who took the defendant to the eastern part of Allen County where the defendant reenacted the crime and told how much money he had taken from the person of his victim. While there the defendant asked the prosecuting attorney what the penalty was for what he had done, and the prosecutor advised that the penalty imposed by statute for first degree murder was either life imprisonment or death in the electric chair, and upon a plea of guilty the punishment was in the court's discretion, but that the prosecutor would recommend life imprisonment rather than the electric chair, to which the appellant relied 'that he would consider that a 'break." The prosecuting attorney read the statute defining murder in the first degree to the defendnat, and advised the defendant of his right to have an attorney if he so desired, and of his right to a trial by jury, to which he replied that he did not want an attorney or a jury trial, that he fully understood the statute and penalties and was ready to enter a plea of guilty. After the court passed sentence the defendant expressed gratification that he had escaped the electric chair. The officers asked the defendant who his relatives were and offered to notify them, but he replied that he did not want his relatives to know anything about the matter, and refused to disclose who or where they were. All of these witnesses, after reciting the extent of their conversations with and observation of the appellant, expressed the...