Mahoney v. State, 24838.
| Decision Date | 19 November 1925 |
| Docket Number | No. 24838.,24838. |
| Citation | 197 Ind. 335,149 N.E. 444 |
| Parties | MAHONEY v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wabash County; Frank O. Switzer, Judge.
Jessie Mahoney was convicted on a plea of guilty of unlawfully operating a motor vehicle while in an intoxicated condition, and she appeals. Affirmed.D. F. Brooks, of Wabash, for appellant.
A. L. Gilliom, Atty. Gen., and George J. Muller, Deputy Atty. Gen., for the State.
This appeal presents the question of the abuse of judicial discretion as alleged in the error asigned that “The court erred in overruling appellant's motion and petition to set aside the judgment and to permit her to withdraw her plea of guilty.” Appellant was charged by an affidavit with unlawfully operating a motor vehicle while in an intoxicated condition. Acts 1923, c. 123.
The record discloses that appellant was arrested September 20, 1924, at which time she gave a recognizance bond for her appearance to such charge on September 22, 1924, and from day to day thereafter, until said cause is finally determined, and that on October 7, 1924, appellant's attorney, together with the prosecuting attorney, in open court, waived arraignment for the defendant, and entered her plea of guilty to the crime as charged, at which time the court fixed October 14, 1924, as the day for the sentence of appellant. On said October 14, 1924, the defendant appeared in person and by her attorney in open court, and the court entered its finding that “the court now finds said defendant guilty of the crime charged, namely, ‘operating a motor vehicle while intoxicated,”’ and thereafter entered judgment and made her fine in the sum of $100 and that she be sentenced to the county jail for a period of 25 days, with costs. The entry of judgment was on said October 14th immediately followed by appellant's motion, supported by affidavit to set aside the judgment and to permit her to withdraw her plea of guilty, which, after hearing and consideration by the court, was overruled.
The foundation for the ruling of the trial court in overruling appellant's said motion and the decision upon appeal is best disclosed by appellant's own affidavit in support of her motion, which is fortified by the affidavit made by her attorney, practically in the same language. She says that she is a resident of Churubusco in Whitley county, Ind., and was on the 20th day of September, 1924, personally acquainted with no one in Wabash county, Ind., on the day that she was arrested, and that she employed as her attorney D. F. Brooks, Esq., because her husband was acquainted with him; that subsequent to the time of such employment she discussed the charge with her attorney, and that in the discussion concerning what course to pursue in said cause she was advised by her said attorney that, if she would enter a plea of guilty to the charge, although the law prescribed in addition to a fine for such offense, a jail sentence, the same would be suspended, and she was assured that the same would be suspended upon such representations; and upon the advice of her said attorney she agreed that he might enter a plea of guilty for her, and that said plea of guilty was entered for her by her attorney in her absence, but that, had she known or had reason to believe that the jail sentence provided for by law would not be suspended, she would not have pleaded guilty, for the reason that she was not guilty of the charge, and that she was misled into pleading guilty, and, further, that, if she had not been misled as aforesaid, she would have had present witnesses to testify that she had never been in trouble before, was not addicted to becoming intoxicated, and that when she was arrested she was driving carefully and properly, and that no harm resulted from her driving, and that she was fully able to drive at the time without harming any other person, and that she is and always has been a woman of high character and high standing in the community in which she lives, but that she had not called such witnesses because she was misled as aforesaid. The affidavit of her attorney, D. F. Brooks, Esq., in addition to making practically the same statement, said that he had had conferences with the prosecuting attorney, the prohibition agent, and the sheriff of Wabash county, in which conferences he was led to believe by all of these persons that, if the defendant in this case would plead guilty to the offense as charged, they would use their influence to have the jail sentence, as provided by law, suspended, and that upon such representations being made to him with the belief that they would use their influence to have the jail sentence suspended he advised the defendant to plead guilty, and for no other reason, and that, because of such representations by the prosecuting attorney, prohibition agent, and sheriff, he had not caused any witnesses to be brought to testify to the defendant's former good character and high standing, and that, had he known that there was any question about the suspension of the sentence, he would not have authorized or directed the defendant to plead guilty, and would not have entered the plea for her as was done, but would have gone to trial, and would have called her neighbors and friends to show that she is and was a woman of good character, never arrested before, and never in trouble, and that by reason of being so misled he did not do his duty to his client. The counter affidavit of the prosecuting attorney was filed, which admitted having had several conferences with defendant's attorney, D. F. Brooks, Esq., together with the sheriff and federal prohibition agent, which conferences primarily concerned another case against this defendant, and that the case at bar was touched upon only incidentally in such conversation, and at no time in any manner, expressed or implied, did the prosecuting attorney lead the attorney for defendant to believe that he would in any way attempt to influence the decision of the judge of the Wabash circuit court, but that he told defendant's attorney that he would not ask the judge “anything regarding his possible decision in this case”; that, although defendant's said attorney had been representing her from the date of her arrest to the date of sentence, and was present in court October 8th, at which time he had entered the plea of guilty for the defendant in her absence, and that both the defendant and her attorney were present in court October 14th, at which time sentence was pronounced, nothing was said then or at any time to the prosecuting attorney in relation to his using his influence for a suspended sentence; and that the prosecuting attorney had at no time had any conference or interview with the defendant. This affidavit was supported by the affidavit of the federal prohibition agent.
[1] The several affidavits are the only evidence before the court in support of or against appellant's motion that the judgment be set aside and she be permitted to withdraw her plea of guilty. It is not necessary here to consider the rule of law in this state that, where there is a conflict in the evidence which makes it necessary for the trial court to weigh the evidence presented, this court will not disturb the ruling of the trial court. Rowe v. State (1922) 191 Ind. 536 (1), 133 N. E. 2.
The prosecuting attorney's counter affidavit, for all practical purposes, is limited to a denial of the facts alleged by the affidavit of D. F. Brooks, Esq., attorney for appellant wherein he alleges that he had conferences with the prosecuting...
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