Ketring v. State

• Decision Date: 05 March 1936
• Docket Number: 26476
• Citation: 200 N.E. 212,209 Ind. 618
• Parties: KETRING v. STATE
• Court: Indiana Supreme Court

200 N.E. 212

209 Ind. 618

KETRING v. STATE

No. 26476

Supreme Court of Indiana

March 5, 1936

Appeal from Koscuisko Circuit Court; Donald Vandervier, judge.

1. HOMICIDE---Manslaughter---Distinction Between Voluntary and Involuntary Manslaughter.---Distinction between voluntary and involuntary manslaughter is that in the former there is a purpose or intention to take life, while in the latter the killing is unintentional, but done in the commission of some unlawful act. p. 621.

2. HOMICIDE---Evidence---Intent---Striking With Fist.---Whether one striking another with his first has the intention to kill is always a question of fact, although in most cases such striking would not indicate an intention to kill. p. 621.

3. CRIMINAL LAW---Arraignment and Plea---Plea of Guilty---Necessity for Full Understanding.---A plea of guilty should be entirely voluntary and made with full understanding of the consequences, especially where the crime charged is a serious one. p. 622.

4. CRIMINAL LAW---Arraignment and Plea---Plea of Guilty---Withdrawal---Discretion.---Whether an accused may withdraw a plea of guilty is a question for the sound discretion of the trial court, and its ruling will not be disturbed on appeal where the record discloses no ground for withdrawal or where the ruling is based upon conflicting evidence. p. 622.

5. CRIMINAL LAW---Arraignment and Plea---Plea of Guilty

---Withdrawal---Abuse of Discretion.---Where one charged with voluntary manslaughter and involuntary manslaughter pleaded guilty of voluntary manslaughter within a few hours after being charged, accused having struck decedent with his fist causing him to fall to the sidewalk from which he received a skull fracture and died, it was held error to deny withdrawal of the plea of guilty upon an uncontradicted showing that accused was unfamiliar with legal procedure, thought he was pleading guilty to involuntary manslaughter, entered the plea without having consulted counsel or friends and while yet dazed and subnormal from a realization of his act. p. 622.

Lloyd Ketring was convicted of voluntary manslaughter upon his plea of guilty, and he appealed. Reversed.

Appeal from Koscuisko Circuit Court; Donald Vandervier, judge.

Sheehan & Lyddick, of Gary, for appellant.

Philip Lutz, Jr., Atty. Gen., and Ralph E. Hanna, Asst. Atty. Gen for the State.

OPINION

HUGHES, Judge.

An affidavit in two counts, the first, charging voluntary manslaughter, and the second, involuntary manslaughter, was filed against the appellant on July 18, 1934. The appellant on the same day the affidavit was filed, pleaded guilty to the first count of the affidavit and was sentenced to the Indiana State Prison for a period of not less than two nor more than twenty-one years. At the time the appellant entered his plea of guilty he had not consulted with an attorney nor any one else other than the prosecuting attorney and the sheriff of the county. On the 23d day of July, 1934, the appellant, by his attorney, moved to set aside and vacate the submission and judgment and permit him to enter a plea of not guilty. The motion was overruled. The appellant then moved to modify the judgment and sentence to read involuntary manslaughter with a sentence of from one to ten years. This motion was also overruled. The appellant then moved the court to strike out and vacate the whole judgment and sentence as being contrary to law, which motion was overruled.

The appellant states eight propositions in his assignment of errors, but we will only consider the second, which is as follows: 'The court erred in overruling the appellant's motion to vacate and set aside the judgment and to permit the appellant to withdraw the plea of guilty.'

The special bill of exceptions show that the motion and request to withdraw the plea of guilty and to vacate and set aside the judgment and sentence was made orally, and the state consented to the oral motion and waived that it be reduced to writing and sworn to. It is also shown that the court acted upon said oral motion without it being reduced to writing.

The facts as set out in the special bill of exceptions are in substance as follows: 'That the defendant (appellant) was not accustomed to legal procedure and did not know the full force and effect of his plea of guilty; that he understood he was pleading guilty to involuntary manslaughter and did not know the law applicable to the facts in the case; that the facts in the case did not substantiate the first count of the affidavit for voluntary manslaughter; that the commission of the offense charged was merely with blow of the fist and that death resulted from a fall whereby the decedent suffered a fractured skull or concussion of the brain causing death that the defendant had no legal advice and no opportunity to talk with friends or relatives before he entered his plea of guilty; that at the time he was in a dazed and subnormal condition of the mind due to the fact of the death of his victim from an act he did not contemplate; that the only persons he...