Irwin v. State

• Decision Date: 28 May 1942
• Docket Number: 27666.
• Parties: IRWIN et al. v. STATE.
• Court: Indiana Supreme Court

41 N.E.2d 809

220 Ind. 228

IRWIN et al. v. STATE.

No. 27666.

Supreme Court of Indiana

May 28, 1942

Appeal from Criminal Court, Marion County; Dewey E. Myers judge.

Robert L. Carrico, of Indianapolis, for appellants.

George N. Beamer, Atty. Gen., and Norman E. Duke, Deputy Atty. Gen for appellee.

FANSLER Judge.

On January 21, 1937, the appellants were charged in the Criminal Court of Marion County with kidnaping a taxicab driver. The records of the court show that they appeared in person and by attorney and entered a plea of guilty upon which they were sentenced to life imprisonment in the Indiana State Prison. In 1941, more than four years later, they filed their separate petitions, denominated 'Verified Petition for Writ of Error Coram Nobis,' seeking to have the judgment vacated and their plea of guilty withdrawn, and to be permitted to plead not guilty, and to be put upon trial.

The petitions, which are substantially identical, and are verified, alleged that at the time of the judgment of conviction they were without counsel, had had no opportunity to consult with an attorney, were not advised of their constitutional right to be represented by counsel and to have counsel appointed for them; that they were not informed of, and did not know the character of, the charge against them; that they understood that they were charged with larceny of an automobile, and did not know until after judgment that they were charged with kidnaping; that the trial judge erroneously assumed, and caused the record to show, that they were represented by counsel, and erroneously assumed that they had been advised of, and were familiar with, the charge against them, and that they had understandingly entered a plea of guilty to that charge; that had the trial judge known that they were not represented by counsel, and that they were unfamiliar with the charge against them, he would have advised them of their right to have counsel, and of the character of the charge against them; and that if so advised they would have plead not guilty to the charge of kidnaping.

It is further alleged in the petitions that the defendants were without funds and have 'been under a disability and unable to secure legal assistance up to now in presenting said matters of fact to this (trial) Court; but now through the assistance of fellow inmates he has been able to prepare this petition * * * and he with due diligence does now present said matters of fact occurring at the time of conviction. * * *'

It is further recited that on January 20, 1937, at about 3:00 o'clock in the morning, the petitioners were arrested in the City of Gary, and charged by police officers with the theft of an automobile; that at about 10:00 o'clock P.M., of the same day, they were taken to Indianapolis and confined in jail; that on the morning of January 21st, certain police officers, by the use of forceful and threatening methods, procured the petitioners to sign a typewritten paper, which the officers refused to read to them, or permit them to read; that the officers said: 'This is only a statement to show the judge that you have stolen an automobile * * *' and 'if you sign this statement we will see that the Judge only gives you One to ten Years'; that the appellant Irwin then requested the police officers to notify his parents, which request was denied; that at about 11:00 o'clock A.M., on January 21st, they were taken, in the custody of three police officers, before the Hon. Frank P. Baker, Judge of the Marion County Criminal Court; that, while in the court room, some papers were read, which petitioners did not understand or comprehend; that a man dressed in plain clothes approached the petitioners and asked: 'Do you boys have any money?' to which the petitioner Irwin answered 'No'; that the man then asked: 'Do your people have any money?'; that the petitioners both answered 'No'; that the man then said: 'Boys, I am afraid I cannot help you much,' and then walked up to the trial judge, and, without further consulting petitioners, said: 'Your Honor, these boys plead guilty'; that they were then sentenced to life imprisonment; that, upon being returned to the jail, the petitioner Irwin asked the police officers what the life sentence was for, and was informed that it was for kidnaping; that the petitioners again requested the police officers to notify their parents by telephone or telegram, which requests were again denied; that five days later they were transported to the Indiana State Prison.

It is further alleged that they were of the age of twenty and twenty-two years, respectively, with very little education; that they did not know their constitutional rights at the time of their conviction, and were completely under the influence of the law enforcement officers. It is also alleged that they were innocent of the crime of kidnaping.

When these petitions were filed, petitioners were still without counsel, and counsel was appointed for them by the court. There was a hearing at which evidence was taken. The Hon. Frank P. Baker was no longer judge of the court, and was not called as a witness. There was a new prosecuting attorney, and the prosecuting attorney who had acted in the case was not called as a witness. The record, showing that the petitioners had appeared in person and by attorney and entered a plea of guilty, was introduced in evidence. The name of the attorney appearing for them was not shown. There were no appearance cards in the files, but the clerk testified that the defendants might have been represented by counsel without the files disclosing the fact.

Police officers testified that the appellants were arrested in Lake County, at about 2:30 o'clock in the morning of January 20, 1937; that the police officer who arrested them had had a radio call from the city police at Lafayette concerning the theft of an automobile; that they also had information about a taxicab kidnaping charge; that the appellants were taken to Lafayette, and because of motor trouble they did not arrive there until about 8:30 o'clock in the morning. They were questioned in Lafayette. One of the officers said: 'The boys told the facts in the case and made a statement in writing at the time and they admitted that they had held up the cab driver here and that they had forced him to drive to Lafayette, and they told about getting a small amount of money from him.'

The appellant Irwin testified that they were brought to Indianapolis in the evening of January 20th and placed in jail, and on the morning of the 21st were brought into court; that they had not talked to an attorney, and had no opportunity to talk to any one but the police officers; that he had asked the police to get in touch with his people in Louisville, Kentucky, but that nothing was done about it; that at the time he had $200, which was in his wife's possession; that after he had been questioned a statement was read to him in which something was said about a car theft; that he did not read the statement 'because I am not a good reader and I can't read very good'; but that he signed the statement. He said that when they were brought into court there was some talk, and one of the police officers told the judge that the defendants wanted to plead guilty; that the man who told the judge they wanted to plead guilty took them back to jail, and that he believed he was one of the officers; that he was not advised of his constitutional right to a trial by jury, and counsel, and legal advice; that he saw no attorney and talked with no attorney; that he was not guilty of kidnaping; that he did steal an automobile in Lafayette; that he did not know what was in the signed statement, but that the officer said he had better sign it; that he told him a few of the things that were in it; 'He said you beat this cab driver out of some money. And I said well I did beat him out of some money because there was an argument over the money. I paid him the fare after we got to Lafayette and he said all we are going to charge you with will be the car theft. So far as I knew that was what was in that statement that I signed.' He testified that he did not remember an indictment being read to him that involved kidnaping; that he did not know he was pleading guilty to kidnaping, or he would not have entered a plea of guilty to that charge.

He testified that his petition was written by a friend in the Indiana State Prison; that he told this friend the story and that he prepared the petition; that the man referred to in the petition as having asked the defendants whether they had money was a police officer, the one that had them in charge.

The appellant Gilliam testified to substantially the same facts. He said that he did not read the statement which he signed, but understood that it concerned the stealing of an automobile, and that he understood he was pleading guilty to the larceny of an automobile. He said that no affidavit or indictment was read to them; that the judge said: 'Do you boys wish to plead guilty?' and that they answered 'Yes'; that he said: 'Do you know what you are pleading guilty to?' and they answered 'Yes'; that when the judge asked them if they knew what they were pleading guilty to, he thought the charge was stealing an automobile. He said they had not consulted with, or been advised by, any attorney at any time; that he was not sure who the man was that questioned them about having money.

There was judgment denying the appellants' petitions, and error assigned questions the correctness of this ruling.

The appellants' petitions for leave to withdraw their pleas of guilty are drafted with considerable skill. Attached to the petitions is an informal but rather exhaustive brief with much citation of authority. The...