Lunce v. State, 29135

• Citation: 233 Ind. 685,122 N.E.2d 5
• Decision Date: 18 October 1954
• Docket Number: No. 29135,29135
• Parties: Charles H. LUNCE, and John R. Reynolds, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 5

122 N.E.2d 5

233 Ind. 685

Charles H. LUNCE, and John R. Reynolds, Appellants, v. STATE of Indiana, Appellee.

No. 29135.

Supreme Court of Indiana.

Oct. 18, 1954.

James C. Cooper, Public Defender of Indiana, Rushville, and Perry W. Cross, Deputy Public Defender of Indiana, Munice, for appellants.

Edwin K. Steers, Atty. Gen., and Frank E. Spencer, Deputy Atty. Gen., for appellee.

FLANAGAN, Chief Justice.

Appellants were charged with the offense of robbery as defined by Burns' 1942 Replacement, § 10-4101. They were found guilty by a jury.

The only question presented to us is whether due process of law was denied appellants because they were represented by incompetent counsel. Reliance for reversal is placed upon the decision in Wilson v. State, 1943, 222 Ind. 63, 51 N.E.2d 848.

The case of Wilson v. State should be read in the light of its own factual background. It should not be used as an excuse to ask this court to review the wisdom of the strategy of each lawyer who tries a law suit.

The court in the Wilson case made it clear, at page 83 of 222 Ind., at page 856 of 51 N.E.2d, when it said:

'We do not hold that a defeated litigant in every or the usual case where his attorney has ignorantly or carelessly failed to save and present an error may nevertheless have it reviewed and made the basis of reversal of the judgment. Ordinarily, procedural rules must be observed by litigants and may not be ignored by reviewing courts. To hold otherwise would invite appeals and violate precedents that have given necessary order and stability to our appellate practice. * * * When, as here, there has been such a lack of representation as to be equivalent to or worse than no representation whatsoever, and as a result thereof the judge misused the opportunity thus given to impress upon the jury his view that the defendant was guilty and ought to be convicted, we are left with no alternative but to exercise the power that is in this court to remand the cause for such a trial as will not deny but will afford to the accused the protection guaranteed by our Bill of Rights and the Constitution of the United States.'

No good would result from setting forth the many minor errors with which appellants' lawyer is charged of having been guilty. It is sufficient to say that they did not approach anything that would permit the conclusion that 'there has been such a lack of representation as to be equivalent to or worse than no representation whatsoever.'

Judgment affirmed.

BOBBITT and DRAPER, JJ., concur.

EMMERT, J., dissents with opinion in which GILKISON, J., concurs.

EMMERT, Judge (dissenting).

This is a delayed appeal granted by us from a judgment on a verdict finding both appellants guilty of robbery, upon which they were sentenced to the Indiana State Prison for a term not less than ten nor more than 25 years, and disfranchised for a period of ten years.

From the records in our Clerk's office and the transcript, it appears that appellants were represented at the time of trial by Louis C. Capelle of Cincinnati, Ohio. Our roll of attorneys fails to show him admitted to practice law in this state. He forwarded to our Clerk what purported to be a transcript and a separate bill of exceptions containing the evidence, which did not comply with our rules, nor did he attempt to file any assignment of errors. See Rule 2-3. By a letter of July 2, 1953, to this court he directed the records be sent to the appellants at the state prison. Since then he has made no effort to pursue this attempted appeal. In order to safeguard the constitutional rights of appellants we directed the Public Defender to represent appellants, and on his verified petition we granted the delayed appeal.

The Public Defender has squarely raised the issue that appellants were denied the right to competent counsel under § 13 of Article 1 of the Constitution of Indiana, and under the Due Process Clause of the Fourteenth Amendment. The only way we can judge the competency of counsel here is from the record he made, and from this record it clearly appears appellants were denied representation by competent counsel under both Constitutions.

When a lawyer from another state as a matter of courtesy is permitted to appear and represent an accused in one of our courts under Rule 3-2, ¹ we cannot presume he is professionally qualified to take sole charge of the defense of an accused. Indeed, if any presumption should be drawn, it should be in the first instance that he is not qualified to take the grave duty of safeguarding the legal and constitutional rights of his clients. The record here shows beyond doubt a gross failure on the part of appellants' counsel to discharge his duty as a lawyer 'to present every defense that the law of the land permits,' and is in striking contrast to the proper conduct of Mr. Roddy, a Tennessee lawyer, who refused to appear for the defendants in an Alabama court without the appointment of Alabama counsel to take charge of the defense in Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527.

The dissenting opinion in Johns v. State, 1949, 227 Ind. 737, 741, 744, 745, 89 N.E.2d 281, called attention to the requirements for competent representation for an accused as laid down by the Canons of Ethics of the American Bar Association. Canon 5 provides:

'It is the right of the lawyer to undertake the defense of a person accused of crime, regardless of his personal opinion as to the guilt of the accused; otherwise innocent persons, victims only of suspicious circumstances, might be denied proper defense. Having undertaken such defense, the lawyer is bound by all fair and honorable means, to present every defense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by due process of law.' (Italics added.)

Canon 15 provides:

'The lawyer owes 'entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability,' to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. * * *' (Italics added.)

As suggested by the dissenting opinion, the majority affirmance of the judgment was a futile act, for Johns subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Indiana, which was sustained in an opinion by Judge Swygert, filed July 15, 1953, which adopted the views of the dissenting opinion. Johns v. Overlade, 122 F.Supp. 921. It is not a pleasant task for this court to say an accused has had incompetent representation by counsel in the trial court, yet if we are going to uphold our own Constitution and the Fourteenth Amendment, it is our duty to so decide when the record clearly discloses the fact.

The affidavit charged appellants 'on the 18th day of August 1952, at said County of Ripley and State of Indiana, did then and there unlawfully, and feloniously take, steal, and carry away of personal property in the custody of Paul McCullough, to-wit: one 1950 Buick Automobile of the probable value of $1500 by violence in that they did beat, strike and wound said Paul McCullough' contrary, etc. (Italics added.) It is not necessary to decide here whether this constitutes a sufficient charge of robbery, but it is sufficient to note that counsel who was familiar with the Indiana statutes and decisions on robbery, or who had made some research on the subject-matter, would have filed a motion to quash this charge, and if it had been overruled would have followed it then by a motion in arrest of judgment at the proper time. 'A charge of larceny is always included in a charge of robbery. The indictment, therefore, should contain all the allegations essential in larceny, with the added matter that makes the larceny robbery. 2 Bish.Cr.Proc. §§ 1001, 1002; Hickey v. State, 23 Ind. 21.' Rains v. State, 1894, 137 Ind. 83, 85, 36 N.E. 532. See also Jacoby v. State, 1936, 210 Ind. 49, 55, 199 N.E. 563.

'The statutory definition of the crime of grand larceny ( § 10-3001, Burns' 1942 Replacement) requires that the name of the owner of the stolen property be averred in the affidavit.

'It is not essential that the absolute ownership be in the person alleged to be the owner. It is sufficient if the evidence shows him to be in possession of the property as bailee, agent, trustee, executor or administrator. State v. Tillett, 1909, 173 Ind. 133, 89 N.E. 589.' Rhoades v. State, 1946, 224 Ind. 569, 573, 70 N.E.2d 27, 28.

However, mere custody is not possession. Warren v. State, 1945, 223 Ind. 552, 62 N.E.2d 624; Williams v. State, 1905, 165 Ind. 472, 477, 75 N.E. 875, 2 L.R.A.,N.S., 248; Jones v. State, 1877, 59 Ind. 229; Clark and Marshall, Law of Crimes (2d ed.) 442, § 313(b). The charge here is very different from the charges in Chizum v. State, 1932, 203 Ind. 450, 180 N.E. 674, and Welch v. State, 1924, 195 Ind. 87, 143 N.E. 354, which stated the personal property belonged to owners other than the one assaulted. The larceny in each case was clearly charged.

Appellants' trial counsel did not exercise ordinary legal skill in excluding incompetent...