Johns v. State

• Decision Date: 21 December 1949
• Docket Number: No. 28594,28594
• Citation: 89 N.E.2d 281,227 Ind. 737
• Parties: JOHNS v. STATE.
• Court: Indiana Supreme Court

Page 281

89 N.E.2d 281

227 Ind. 737

JOHNS v. STATE.

No. 28594.

Supreme Court of Indiana.

Dec. 21, 1949.

Frank L. Oliver, Kokomo, for appellant.

J. Emmett McManamon, Atty. Gen., Merl M. Wall, Deputy Atty. Gen., Charles F. O'Connor, Deputy Atty. Gen., for appellee.

YOUNG, Judge.

This is an appeal from an order denying appellant's petition for a writ of error coram nobis. The order was entered on the 27th day of May, 1949. The transcript on appeal was filed with the clerk of this court on July 8, 1949. Rule 2-40 of this court provides as follows: 'An appeal may be taken to the Supreme Court from an order granting or denying a petition for writ of error coram nobis. The sufficiency of the pleadings and of the evidence to entitle the petitioner to the writ will be considered upon an assignment of error that the order is contrary to law. The transcript of so much of the record as is necessary to present all questions raised by appellant's propositions shall be filed with the Clerk of the Supreme Court within thirty (30) days after the date of the order. * * *'

It appears, therefore, that this appeal was not perfected within the time allowed by the rule, and, as stated in Brady v. Garrison, 1912, 178 Ind. 459, 460, 99 N.E. 738, 739: 'It has been uniformly held by this court that an appeal must be taken within the time limited by statute, and that, unless the transcript and assignment of errors are filed within that time, there is no cause in this court. (Citing cases.)'

Filing the transcript in this court within time is jurisdictional, and when the record is not filed in this court on time the appeal will be dismissed. Vail v. Page, 1911, 174 Ind. 126, 131, 93 N.E. 705; Stocker et al. v. City of Hammond, 1938, 214 Ind. 628, 630, 16 N.E.2d 874; Anderson v. Lagow, 1942, 220 Ind. 363, 368, 41 N.E.2d 798; Grider v. Titus, 1948, 118 Ind.App. 473, 476-477, 80 N.E.2d 570; Powers v. Cleveland, C., C. & St. L. Ry. Co., 1930, 96 Ind.App. 517, 518, 170 N.E. 107; Gundy, Adm'r, v. McDowell Lumber Co., 1933, 97 Ind.App. 638, 640, 185 N.E. 869; Taughinbaugh v. State of Indiana, 1928, 88 Ind.App. 160, 161, 163 N.E. 599; Keller v. Hatfield, 1945, 116 Ind. 105, 106, 62 N.E.2d 400.

In Vail v. Page, supra [175 Ind. 126, 93 N.E. 706], Judge Douglas Morris, speaking for this court, said, 'Without discussing the question of the waiver of the right to file the petition to dismiss by reason of the failure to file the bond, it is sufficient to say that by the failure to file the transcript within the statutory period of 100 days this court never acquired jurisdiction of the appeal, and in such case it would be the duty of the court, on its own motion to order a dismissal. (Citing cases.)'

In Gundy, Adm'r, v. McDowell Lumber Co., supra, it is said, 'The filing of the transcript within the time fixed by the statutes is jurisdictional, and, if filed too late, the appeal must be dismissed.'

Rule 2-40 provides that in the type of action here involved the transcript shall be filed with the Clerk of this court within 30 days after the date of the order and the transcript not having been so filed this court is without jurisdiction.

It is true that in this case a motion for a new trial was filed on June 9, 1949, and was overruled on the same day and the transcript was filed herein on the 30th day thereafter. In the motion for a new trial the only error assigned was that the court erred in denying defendant's motion and petition for a writ of error coram nobis. It was not alleged in the motion for a new trial that the action of the court was contrary to law. The filing of this motion for a new trial did not serve to extend the time for perfecting the appeal herein.

Motions for a new trial are not contemplated in coram nobis proceedings. Fluty v. State, 1946, 224 Ind. 652, 656, 71 N.E.2d 565; Lucas v. State, Ind.Sup.1949, 86 N.E.2d 682, 683. These cases are based upon the language of the rule above quoted and the provision therein that questions on the pleading and evidence will be considered upon assignment of error that the order is contrary to law. The provision in the rule that the transcript shall be filed in this court within 30 days after the date of the order granting or denying such petition is mandatory, and the fact that there is no mention of any motion for a new trial is significant, because the rule with reference to other appeals provides that the transcript of the record must be filed in the office of the clerk of this court within 90 days from the date of the judgment or the ruling on the motion for a new trial. Rule 2-2. The failure of the court to incorporate in Rule 2-40 mention of a motion for a new trial and to make the time for filing transcript run from the ruling upon such motion, together with the provision that all questions will be considered upon an assignment of error that the order is contrary to law, make it clear that no motion for a new trial was necessary and that the time for lodging the appeal should run from the date of the order.

Because of failure to file the transcript in this case within the time fixed by the rules, this court is without jurisdiction and this appeal is dismissed.

EMMERT, Judge (dissenting).

The Indiana courts ought to wash their own judicial linen. It is the duty of this court to see that this is done. We should not leave without a state remedy, wrongs which will have to be corrected in the federal courts. As long as the federal constitution 'shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby any Thing in the Constitution or Laws of any State to the Contrary notwithstanding,' ¹ it is our sworn duty to enforce 'due process' under the Fourteenth Amendment. Society suffers, respect for law is weakened and public funds are needlessly expended when we deny relief for violations of due process, and force prisoners into the federal courts for protection of their rights.

The Indiana constitution is specific on the right to counsel by an accused. Section 13 of Article I, commands that, 'In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel'. This provision is self-executing. Webb v. Baird, 1854, 6 Ind. 13; Knox County Council v. State ex rel. McCormick, 1940, 217 Ind. 493, 29 N.E.2d 405, 130 A.L.R. 1427. It is the imperative duty of the trial court to see that a pauper accused is afforded adequate and competent counsel. Castro v. State, 1925, 196 Ind. 385, 147 N.E. 321. Section 12 of the same Article I puts the mandatory duty on this court to provide a remedy. It states in language too plain to be ignored or evaded, that, 'All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.' (Italics added.)

Under the many decisions of the United States Supreme Court on protecting the rights of an accused under 'due process,' the state courts are no longer free to make their own mistakes in providing fair treatment for one charged with a serious crime. It is doubtful if any period in the history of law has ever witnessed a wiser or more salutory extension of jurisdiction. Since Webb v. Baird, 1854, 6 Ind. 13, supra, with few exceptions, this court has enforced the right to counsel. Appellant here asserts his rights were violated both under due process' under the Fourteenth Amendment, and under § 13 of Article I of the Indiana constitution, and in view of the similarity of federal and state precedents, the guarantees under each constitution will be treated as identical.

When an appellant asserts that he has been deprived of his liberty or life under our Bill of Rights, his sworn allegations, which are uncontradicted by the state, will be taken as true on review. Sanders v. State, 1882, 85 Ind. 318, 44 Am.Rep. 29; Batchelor v. State, 1920, 189 Ind. 69, 125 N.E. 773; Mislik v. State, 1915, 184 Ind. 72, 110 N.E. 551; Rhodes v. State, 1927, 199 Ind. 183, 156 N.E. 389; Dobosky v. State, 1915, 183 Ind. 488, 109 N.E. 742, Kuhn v. State, 1944, 222 Ind. 179, 52 N.E.2d 491. The same standard is applied when a denial of 'due process' is determined by the federal courts. Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; White v. Ragen, 1945, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; Tomkins v. State of Missouri, 1945, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407; Williams v. Kaiser, 1945, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Hawk v. Olson, 1945, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61. Nor will a general statement of opinion in behalf of the state serve to refute an allegation of fact to the contrary. Bielich v. State, 1920, 189 Ind. 127, 126 N.E. 220. Undenied or uncontradicted facts then present a question of law for determination on review. Vonderschmidt v. State, Ind.Sup.1948, 81 N.E.2d 782; Atkinson v. State, 1920, 190 Ind. 1, 128 N.E. 433; Batchelor v. State, 1920, 189 Ind. 69, 125 N.E. 773; Sanders v. State, 1882, 85 Ind. 318, 44 Am.Rep. 29; Beard v. State, Ind.Sup.1949, 88 N.E.2d 769; Watts v. State of Indiana, 1949, 338 U.S. 49, 69 S.Ct. 1347, 1357, 93 L.Ed. ----.

From the number of times this court is requested to review the actions of trial courts in appointing counsel for indigent accused persons, and the importance of a satisfactory and complete discharge of this duty by the trial court, it may be of benefit to state again the general principles involved, in order to lessen the frequent occurrences of such issues coming before trial courts and this court.

There is no more honorable or important employment any member of the legal profession may undertake than the acceptance of the court's appointment to represent an indigent accused. The accused cannot dictate the choice, nor is the trial judge at liberty to delegate or abdicate his discretion to the board of county commissioners, or anyone else, to choose competent counsel for an accused under a particular criminal...