Lykins v. State, 28798

• Decision Date: 31 October 1952
• Docket Number: No. 28798,28798
• Citation: 108 N.E.2d 270,231 Ind. 258
• Parties: LYKINS v. STATE.
• Court: Indiana Supreme Court

Page 270

108 N.E.2d 270

231 Ind. 258

LYKINS v. STATE.

No. 28798.

Supreme Court of Indiana.

Oct. 31, 1952.

Joseph Pitman, Dunkirk, James W. Grimes, Portland, for appellant.

J. Emmett McManamon, Atty. Gen. of Indiana, William T. McClain, John Ready O'Connor, Deputy Attys. Gen., for appellee.

BOBBITT, Judge.

This is an appeal from a judgment of the Jay Circuit Court denying appellant's petition for writ of error coran nobis.

The petition recites that appellant was arraigned in Jay Circuit Court on September 13, 1947, on a charge of murder in the first degree, to which charge he entered a plea of not guilty; that he was thereafter tried before a jury and on February 28, 1948 was found guilty as charged, and on March 25, 1948 was sentenced to the Indiana State Prison for life. Said petition further alleges that appellant was of unsound mind, both at the time of the commission of the act on July 26, 1947 and during his trial; that he did not realize at the time of the commission of the crime, or at the time of his trial, that he was of unsound mind; that even though he had able and competent counsel, his unsoundness of mind was of such nature that his attorneys did not recognize it; and that because of the hidden and latent nature of the condition of his mind insanity was not pleaded as a defense, but that had he been possessed of all of his mental faculties he would have pleaded his unsoundness of mind at the time of the commission of the crime.

When insanity is relied upon as a defense it must be specially pleaded and the prosecuting attorney may reply to such plea by a general denial in writing. Section 9-1701, Burns' 1942 Replacement, Acts 1913, ch. 298, § 1, p. 774; Swain v. State, 1939, 215 Ind. 259, 264, 18 N.E.2d 921; Fritz v. State, 1912, 178 Ind. 463, 467, 99 N.E. 727; Sage v. State, 1883, 91 Ind. 141.

Appellant admits that no special plea of insanity was entered at his trial and his sanity was not in issue, but relies upon a statement of this court in Swain v. State, supra, at page 265 of 215 Ind., at page 923 of 18 N.E.2d, in support of his petition for writ of error coram nobis. Said statement is as follows:

'It must be conceded, we think, that in a proper case coram nobis may afford a remedy for the relief of an insane person who is convicted without that fact having been brought to the attention of the trial court, where the circumstances surrounding the case disclose that the defendant was prevented from hiaving the issue raised and presented. Such is the intimation to be found in the case of Sanders v. State, 1882, 85 Ind. 318'.

Appellant contends that the circumstances surrounding his case prevented him from having the issue raised and presented at his trial because his insanity was latent and unknown to him or his attorneys at the trial, and by reason of this fact it could not have been specially pleaded. The record before us fails to disclose any circumstances surrounding appellant's case which would support the contention that he was prevented from having the issue of his sanity raised and presented at his trial.

In order to sustain his petition for a writ of error coram nobis, appellant was required to show by a fair preponderance of the evidence (1) that he was of unsound mind at the time he committed the offense with which he was charged; and (2) that he was prevented from having the issue raised and presented at his trial. Sells v. State, Ind.Sup., 1952, 107 N.E.2d 264.

Appellant introduced evidence in support of the allegations of his petition, and appellee introduced evidence controverting each and every allegation thereof. An examination of the record shows conflicting evidence on each material question. The rule that this court will not weigh conflicting evidence or determine the credibility of witnesses applies to hearings on petitions for writs of error coram nobis. State v. Lindsey, Ind.Sup., 1952, 106 N.E.2d 230; Sells v. State, 1952, supra; Abraham v. State, 1949, 228 Ind. 179, 91 N.E.2d 358.

The question of whether appellant was of unsound mind at the time of the commission of the offense for which he was tried and convicted was one of fact to be determined by the trial court, as was the question of whether or not he was prevented from having the issue of his sanity raised and presented at his trial. The burden of establishing these facts rested upon appellant.

An examination of the record discloses:

(1) The introduction at the coram nobis hearing of an affidavit by one of the defense attorneys at appellant's murder trial, Clarence E. Benadum, stating that in numerous conversations with appellant preceding said trial he could not, and did not, detect 'mental symptoms of such a characteristic nature as to convince [him] affiant at that time that said Lykins was insane and of unsound mind.' Affiant further states that appellant, while peculiar in his nature, did not show sufficient symptoms of insanity to warrant a positive inference that he was of unsound mind. The affidavit further states that affiant 'entertained a thought' that appellant had a 'more or less' hidden mental condition bordering upon unsoundness of mind, but when this thought was mentioned to appellant he 'spurned it at every turn.'

(2) Robert L. Smith, a witness for appellee, testified that he is a lawyer and assisted the State of Indiana in the murder trial of appellant, that he observed appellant during the trial and he consulted frequently with his attorneys and appeared to be fully aware of every...