Lobaugh v. State, 28452.

• Decision Date: 16 November 1948
• Docket Number: No. 28452.,28452.
• Parties: LOBAUGH v. STATE.
• Court: Indiana Supreme Court

226 Ind. 548

82 N.E.2d 247

LOBAUGH

v.STATE.

No. 28452.

Supreme Court of Indiana.

Nov. 16, 1948.

Ralph W. Lobaugh was convicted of first-degree murder in three separate cases. Thereafter he filed his verified petition in each of the cases for writ of error asking leave to withdraw his plea of guilty, and to have court vacate finding of guilty and sentence, and to permit him to appear and enter plea of not guilty and for trial on plea of not guilty. From judgment sustaining demurrers of the State as to each of the petitions, the defendant appeals.

Judgments reversed with instructions.Appeal from Allen Circuit Court; William H. Schamen, Judge.

Robert A. Buhler, James Nicholas, and Peter Nicholas, all of Fort Wayne, for appellant.

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

STARR, Judge.

On October 27, 1947, the appellant stood charged, by indictment, in three separate cases in the Allen Circuit Court, with murder in the first degree. These causes were Nos. 6368, 6369 and 6370 respectively in said court. The indictment in said cause No. 6368 charged the appellant with the murder of one Wilhelma Haaga; the indictment in cause No. 6369 charged the appellant with the murder of Dorothea Howard; and the indictment in said cause No. 6370 charged the appellant with the murder of one Anna Kuzeff. On said last mentioned date the appellant appeared in each of said cases and entered a plea of guilty, whereupon, the court pronounced judgment and assessed and imposed the death penalty in each case. Thereafter, on the 15th day of January, 1948, the appellant filed his verified petition in each of these cases for a writ of error coram nobis, wherein he asked leave to withdraw his plea of guilty, that the court vacate the finding of guilty and sentence, and that he be allowed to appear and enter a plea of not guilty, and upon such plea that a trial be had. Each of these petitions contained all the necessary formal allegations. The material parts of each of said petitions are identical and are to the effect that the appellant is not guilty of the crime charged; that at the time that he entered his plea of guilty, he was under the influence and effect of benzedrine, a hypnotic drug, self-administered, making him not responsible for what he said or did in court when he entered his plea of guilty, and at said time he did not in fact comprehend the full import and consequence of his acts. Each of these petitions contains a great amount of evidentiary matter in pleading the necessary allegation that he was not guilty of the crime charged. Each of them also contains an allegation that at the time he entered his plea he was confined in the Allen County Jail and was then being subjected to severe pressure by fellow prisoners, making his further confinement there ‘unindurable and unbearable.’ There is nothing pleaded, however, which would remotely indicate that at the time he made his plea he was under duress.

Appellant has also included in the record, a great number of affidavits and a bill of exceptions-no one of these has a place in these appeals as in each appeal the only question raised is the ruling on the demurrer to the petition.

In due course, the appellee in each case, filed a demurrer to the petition on the ground that the same did not state...