Hoy v. State, No. 28294.

• Docket Nº: No. 28294.
• Citation: 225 Ind. 428, 75 N.E.2d 915
• Case Date: December 11, 1947
• Court: Supreme Court of Indiana

225 Ind. 428
75 N.E.2d 915

HOY
v.
STATE.

No. 28294.

Supreme Court of Indiana.

Dec. 11, 1947.

Sam Hoy was convicted of robbery, and he appeals.

Reversed and new trial ordered.

EMMERT, C.J., and GILKISON, J., dissenting in part.

[75 N.E.2d 915]

Appeal from Monroe Circuit Court; Q. Austin East, Judge.
Mellen & Mellen, of Bedford, for appellant.

Cleon H. Foust, Atty. Gen., Frank E. Coughlin, 1st Deputy Atty. Gen., and Merl M. Wall, Dept. Atty. Gen., for appellee.

EMMERT, Chief Justice.

This is an appeal from a judgment of the Monroe Circuit Court convicting the appellant of the felony of robbery, § 10-4101 Burns 1942 Repl., and sentencing him to the Indiana State Prison for a term not less than ten nor more than twenty-five years. The error assigned is the trial court's overruling the appellant's motion for new trial.

The record discloses that the State of Indiana, on the 10th day of December, 1946, filed an affidavit in two counts, the first charging the appellant with the robbery of Bob Y. Jean on the 9th day of December, 1946, and the second count charging appellant with grand larceny in the sum of $120, the property of the said Bob Y. Jean, on the same date; that the appellant was arrested on a bench warrant on the 10th day of December, and upon arraignment he pleaded not guilty to each count; that the trial was set for December 16th. That five days prior to the trial date the appellant was asked by the court if he desired the court to appoint counsel to represent him, and the appellant informed the court he would employ his own counsel. On December 16th, the time for trial, the appellant appeared in court in custody, and upon inquiry by the court, the appellant stated he did not have counsel. Then the court appointed R. I. Black as pauper attorney to represent

[75 N.E.2d 916]

appellant. On the same date the cause was tried by a jury, which after being orally instructed by the court, returned a verdict finding the appellant guilty of robbery as charged in the first count of the affidavit. Thereupon the court pronounced judgment in accordance with the verdict.

The appellant's motion for new trial was supported by the affidavit of his trial counsel, R. I. Black, which in substance stated that when affiant was in court attending to civil matters on the 16th day of December, the court appointed him as pauper attorney to represent appellant; that the appellant had been in jail continuously since arrest and unable to provide bond; that affiant informed the court he knew nothing about the case, that he moved the court for time to investigate the law and the facts and to secure necessary witnesses for appellant; that the court then answered in substance, in the presence of the jury which had been called to try the case, that appellant had had time to secure counsel and be ready for trial, and that affiant could have one hour to prepare for trial, and no continuances would be granted. That one Noble Baugh and Lester Hoy were eye witnesses to the altercation out of which the alleged offense grew, who would testify that appellant did not rob Bob Y. Jean or steal any money from him, but that Noble Baugh was then confined in the Indiana State Farm at Putnamville, and that Lester Hoy was then serving a sentence in an Indiana prison, and so far as affiant could then learn there were no other eye witnesses; that affiant did not have time to prepare an affidavit for continuance.

To this affidavit of appellant's trial counsel, the Prosecuting Attorney filed a counter-affidavit, setting forth certain other facts bearing on the question of effective representation by counsel. It stated in substance that before time for trial the appellant had conferred with LeRoy Baker, an attorney of Bloomington, and Mellen & Mellen, attorneys of Bedford, but that none of these appeared as counsel for appellant; that Lester Hoy, brother of appellant, was yet in the Monroe County jail on the date of trial, and could have been subpoenaed, and that counsel for appellant did not move the court for a continuance in order to obtain Noble Baugh, who was at the Indiana State Farm, as a witness.

The Prosecuting Attorney also filed a counter-affidavit of the Sheriff of Monroe County, which alleged that Lester Hoy was confined in the county jail on the date of trial, that he occupied the same cell as the appellant, and that he had not been taken to prison for the reason he might be needed as a witness in said trial.

All the above affidavits are set forth in appellant's brief under the heading of ‘Concise Statement of Record.’ The appellee's brief states, ‘Appellant has set out a concise statement of the record which is considered by appellee to be sufficient for this appeal.’ Under Rule 2-18 of this court inaccuracies in appellant's statement of the record should be set out or they are waived. Therefore no question has been presented which will prevent this court from considering these affidavits as affecting the merits of this appeal. See Headlee v. State, 1930, 201 Ind. 545, 168 N.E. 692,170 N. E. 433;Alexander v. State, 1932, 203 Ind. 288, 164 N.E. 259,179 N. E. 783.

Thus the questions are presented (1) whether appellant was denied representation by counsel as guaranteed by Section 13 of Article I of the Constitution of Indiana,^a and (2) whether he was denied ‘due process of law’ under the Fourteenth Amendment of the federal Constitution. We hold that both constitutional protections were violated.

As early as 1854, concerning the right to counsel when a defendant was indicted for burglary, this court observed:

‘It is not to be thought of, in a civilized community, for a moment, that any citizen put in jeopardy of life or liberty, should be

[75 N.E.2d 917]

debarred of counsel because he was too poor to employ such aid. No Court could be respected, or respect itself, to sit and hear such a trial. The defense of the poor, in such cases, is a duty resting somewhere, which will be at once conceded as essential to the accused, to the Court, and to the public.’ Webb v. Baird, 1854, 6 Ind. 13, 18.

When a defendant stands charged with crime this court has always been careful in protecting his rights guaranteed by Section 13 of Article 1 of the Indiana Constitution. In an opinion which reversed a judgment of conviction upon a plea of guilty of murder in the first degree, where defendant had requested counsel several times before arraignment, but at the time of the plea was informed that he could have a lawyer and a trial by jury, and defendant at the time informed the court he was guilty and desired to plead guilty, this court said:

‘It has been held that a constitutional right to be heard by counsel is not limited to the right to be heard by counsel at the trial, but that the spirit of the provision contemplates the right of accused to consult with counsel at every stage of the proceedings. People ex rel. Burgess v. Hisley, 1883, 66 How.Prac. (N.Y.) 67;State v. Moore, 1900, 61 Kan. 732, 60 P. 748. In the case first cited the court said: ‘Perhaps the literal letter of the constitutional provision would be complied with by allowing to the accused the benefit of counsel upon the ‘trial,’ but such a construction would illustrate the truth of that part of the old legal maxim which declares, ‘The letter killeth,’ and disregard its conclusion, ‘while the spirit giveth life.’ Undoubtedly the clause of the Constitution under consideration was adopted to secure to the accused person all the benefits which could flow from the employment of counsel to conduct his defense; and to give him those it is essential that he should be allowed to consult with his counsel not only during the actual trial, but prior thereto, in order to prepare for his defense. Where a right is conferred by law, everything necessary for its protection is also conferred, although not directly provided for. The privilege of the presence of counsel upon the trial would be a poor concession to the accused if the right of consultation with such counsel prior to the trial was denied. To give life and effect, therefore, to the provision of the Constitution under consideration, it must be held to confer upon the relator every privilege which will make the presence of counsel upon the trial a valuable right, and this must include a private interview...