Joseph v. State, 28714

• Decision Date: 11 June 1951
• Docket Number: No. 28714,28714
• Parties: JOSEPH et al. v. STATE.
• Court: Indiana Supreme Court

Page 244

99 N.E.2d 244

229 Ind. 496

JOSEPH et al. v. STATE.

No. 28714.

Supreme Court of Indiana.

June 11, 1951.

James C. Cooper, Public Defender, Rushville, for Joseph.

Waldo C. Ging, Greenfield, for Pierce.

J. Emmett McManamon, Atty. Gen., Frank E. Coughlin, Deputy Atty. Gen., George W. Hand, Deputy Atty. Gen., Norman J. Beatty, Deputy Atty. Gen., for appellee.

GILKISON, Judge.

Appellants filed their verified petition in the court below among other things averring that they were found guilty of murder by a jury in the Hancock Circuit Court on February 22, 1936, were immediately thereafter sentenced to prison for life by the presiding judge and within two hours thereafter they were taken to the Indiana State Prison, inducted therein and since that time they have remained in the prison. That before being removed from Hancock County their request to see their attorney of record relative to filing a motion for new trial, was denied. When they arrived at the prison they were immediately placed in solitary confinement for a period of ten days and prohibited from writing any one or seeing any one other than the deputy warden and other prison employees. During that time their frequent requests for permission to correspond with their attorneys about filing a motion for new trial were denied. After being released from solitary they were placed in 'second grade' and were permitted to write but one letter a month, which letter could be written only on the last Sunday of each month. Since they were in solitary confinement on the last Saturday of February they were unable to write until the last Sunday in March which was more than thirty days from the date of judgment and after the lapse of the thirty days allowed for the filing of a motion for new trial.

They wrote a letter to their attorney, Whetsel, asking him to prepare and file their motion for new trial, and gave the same to the deputy warden but he refused to allow the letter mailed from the institution.

They had another prisoner prepare a motion for new trial for them while they were in 'second grade', and requested the deputy warden for permission to mail it which permission was denied. Among other things they pray that they be granted the right to file a motion for new trial after the expiration of the statutory time provided therefor, for the reasons given.

On October 29, 1949 the state filed a demurrer to appellants' petition under Cl. 1, § 2-1007, Burns' 1946 Repl., 'That this court has no jurisdiction of the subject-matter of the action,' which, after argument by counsel and consideration by the court, was overruled on December 3, 1949. Thereafter, the state filed its original action for prohibition against the Hancock Circuit Court and its judge and it was decided by this court on January 13, 1950. See State ex rel. McManamon v. Hancock Circuit Court, 1950, 228 Ind. 90, 89 N.E.2d 545. Thereafter, on March 4, 1950, the state filed its written request to withdraw its demurrer previously filed and ruled upon, for the purpose of refiling the demurrer with additional memorandum, which petition was granted. On March 11, 1950, the state filed a new demurrer under Cl. 5 of § 2-1007, Burns' 1946 Repl., 'The petitioners' petition does not state facts sufficient to constitute a cause of action.' On March 18, 1950, the court heard arguments on the new demurrer and took it under advisement. On May 12, 1950, the court sustained the new demurrer. On May 25, 1950 the petitioners declining to plead further, the court denied each of the petitioners the right to file a delayed motion for new trial, and rendered judgment against them for costs. From this judgment the appeal is taken.

The assignment of errors questions the action of the trial court: (1) In permitting the state to withdraw its demurrer. (2) In permitting the state to file a second demurrer. (3) In sustaining the second demurrer. (4) In denying appellants the right to file a delayed motion for new trial in order to perfect the record for appeal. (5) In denying appellants a right to file their delayed motions for new trial without a hearing upon the merits of the petition. (6) In denying appellants due process of law and equal protection of the law in violation of the Fourteenth Amendment of the Federal Constitution.

There seems to be a scarcity of precedent on the subject of whether a demurrer that has been ruled upon may be withdrawn, or whether when a demurrer is withdrawn another demurrer may be filed.

It has been stated that a party demurring may be allowed to withdraw his demurrer and plead after it has been overruled. Vol. I Watson's Works Practice, § 872, p. 590.

Also a party has a right to withdraw a demurrer and answer or reply at any time before judgment on it is recorded, unless the demurrer is frivolous. Call v. Ewing, 1824, 1 Blackf. 301, 303 [Reprint p. 322, 324]. Berry and Others v. McDonald, 1845, 7 Blackf. 371. Dunn v. Sparks, 1856, 7 Ind. 490, 493. State v. Barrett, 1876, 54 Ind. 434, 436. But in the instant case the demurrer was not withdrawn to permit the state to file an answer or reply or other pleading. It was withdrawn 'so that the State of...