McCrary v. State

Decision Date02 April 1961
Docket NumberNo. 30065,30065
Citation241 Ind. 518,173 N.E.2d 300
PartiesJohn Clifford McCRARY, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

John Clifford McCrary, pro se.

Edwin K. Steers, Atty. Gen., Stanley B. Miller, Deputy Atty. Gen., for appellee.

BOBBITT, Chief Justice.

On April 8, 1959, appellant herein filed, pro se, in this court certain papers purporting to be 'An Appeal From the Putnam Circuit Court in the Dismissal of Amended Petition for Writ of Error Coram Nobis' (in forma pauperis), which purported appeal was dismissed by a per curiam opinion of this court on May 14, 1959, 1 for failure to file an assignment of errors as provided by Rule 2-6 of this court, 1958 Edition, and also for failure to initiate the appeal and file a transcript as provided by Rules 2-3 and 2-5 of this court, 1958 Edition.

On May 29, 1959, appellant filed his petition for rehearing asserting, inter alia, 'that he is not familiar with the rules and regulations of the Indiana Supreme Court, and due to the fact that he is a pauper person without means of employing counsel, he has no opportunity to comply with above said rules and regulations. He also contends, that because of his pauper status, it was the duty of the lower Court to appoint him Counsel in order that he might perfect and [an] appeal of his cause.'

This petition was denied, without opinion, on September 18, 1959.

Subsequently appellant filed a petition for certiorari in the Supreme Court of the United States wherein he alleged, inter alia, that the dismissal of his attempted appeal here denied him the equal protection of the laws because he was unable to pay for the preparation and securing of a proper transcript of the record of the trial court to present here on appeal and, further, that he attempted to avail himself of the services of the Indiana Public Defender who is empowered to secure a transcript in proper cases, at public expense, and that the Public Defender declined to assist him or to secure such transcript or to assist him in perfecting his appeal.

In granting certiorari the opinion of the Supreme Court of the United States, 364 U.S. 277, 80 S.Ct. 1410, 1411, 4 L.Ed.2d 1706, stated, 'The record before us does not disclose whether these allegations were made to, and passed on by, the Indiana Supreme Court in light of Griffin v. People of State of Illinois, supra, [(1956), 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055].' Our order of dismissal was vacated and the case remanded here for further consideration of the appeal.

In our judgment Griffin v. People of State of Illinois, supra, is not applicable here and does not control our action in the present case for the following reasons:

At the time Griffin and Crenshaw were convicted on a charge of armed robbery the State of Illinois provided for the payment of the costs of an appeal for a poor person unable to prosecute his writ of error, only and solely from a conviction of a capital offense where the sentence was death. 2

The Illinois Post-Conviction Hearing Act 3 provides that '[a]ny person imprisoned in the penitentiary' may institute a proceeding to show that his rights under the Constitution of the United States or of the State of Illinois were substantially denied, in the proceeding which resulted in his conviction and if he is unable to pay the cost of such proceeding, the court may order that he be permitted to proceed as a poor person.

Griffin and Crenshaw were denied the right to appeal as a poor person from their conviction of armed robbery under the first statute because its provisions were limited to persons convicted of a capital offense, the penalty for which is death; and were denied the right to proceed as a poor person under the provisions of the Post-Conviction Act solely on the grounds that the charges contained in their petition raised no substantial State or Federal constitutional questions.

As we analyze the opinion by Justice Black it appears that the decision of the Supreme Court of Illinois was reversed because both Illinois statutes violated the due process and equal protection clauses of the Constitution of the United States, (U.S. Const. Amend. 14) in that they discriminated between 'poor persons' by requiring the county to pay the costs of an appeal for those who were convicted of capital crimes, the sentences for which were death, but failed to provide like facilities for persons of the same economic status who were convicted of lesser crimes, and by providing for a post-conviction remedy under which only constitutional questions could be raised.

The remedies of appeal for poor persons in Indiana are not inflicted with such discriminatory provisions. In this State both the right of appeal from the conviction in any criminal case and from a judgment in any post-conviction proceeding are available to all persons who are unable to pay the cost of their appeal upon the same terms and conditions.

Appellant's proceeding herein has been considered under the same rules and regulations as are applied to every similar case arising in this State. He has been accorded his full rights of due process.

There is no distinction between offenses or issues in the statutes of Indiana or in the rules of procedure of this court as they pertain to pauper appeals, either from a judgment of conviction in criminal cases or from a judgment in a post-conviction proceeding.

Upon receipt of the mandate from the Supreme Court of the United States, and being without information concerning whether the Public Defender had refused to represent appellant as alleged in his petition for certiorari, we ordered him (the Public Defender) to show cause 'why he declined, if he did decline or refuse, to provide a transcript for appellant [McCrary] or to assist him in the preparation of an appeal from the dismissal' of his coram nobis proceeding in the Putnam Circuit Court.

In compliance with such order the Public Defender has timely filed his verified answer and return wherein it is stated that appellant-McCrary did request his services, whereupon he personally interviewed appellant at the Indiana State Prison on July 19, 1956. That thereafter he made a complete and thorough investigation of the case and found the following:

That prior to October 6, 1955, appellant lived near Fincastle, Indiana, with his wife and their three children, ages 16, 15 and 12, respectively; that they had been married for more than 16 years and the wife was employed as a practical nurse in and around Greencastle and Indianapolis, Indiana, and had been employed in a sanitarium in Indianapolis for about a month prior to October 6, 1955; and that she commuted between their home in Fincastle and her work in Indianapolis, using her own automobile.

Appellant also was employed in Indianapolis, and drove his own automobile to and from work, or shared rides with others at various times. Appellant suspected his wife of meeting another man and when he accused her of this she admitted that it was true. Although promising to stop seeing the other man she kept taunting her husband about him. In his confession appellant stated that he believed 'she had made good her promise to quit seeing' the other man.

On October 6, 1955, appellant became ill at work and left for home arriving there a little after noon. His wife, who was then at home, and he engaged in an argument about their marital affairs and she told him that she was going to 'pack her clothes and move out.' Appellant, in his signed confession, a copy of which is made a part of the Public Defender's return, said:

'After she said that I walked into the bedroom and picked up my Stevens 22 Rifle which was setting in the closet. I pulled back the safety and saw that it was loaded. It was then that I decided to kill Ruth. I called to her 'Hey Ruth'. She came to the bedroom door and I pointed the gun at her. She saw the gun and said 'Oh Cliff' and started toward me holding her hands out to me. That was when I shot her. I didn't know how many times I shot her till she fell to the floor. I shot her twice in the left breast while she was laying there kicking and twisting on the floor. She didn't say anything after I had fired the first shot. I don't know whether I hit her every time I shot or not. She lay quiet after I shot her the last two times while she was on the floor.'

Appellant-McCrary, after writing notes to his children, called the telephone operator and asked her to call the sheriff and tell him that he had killed his wife. He then waited on the front porch until a deputy sheriff arrived at which time he hold him what had happened. The deputy sheriff then went into the house and after observing what had happened placed appellant under arrest and took him to the county jail. At the jail appellant was asked if he wanted to make a statement and later was taken to the office of the prosecuting attorney of Putnam County. He was advised at that time that he was entitled to have a lawyer, and in reply to this advice by the prosecuting attorney, appellant said, 'What good could any lawyer do me now.' He then made the complete written confession in which he stated, 'I have not been mistreated by anybody in any way since the deputy sheriff took me in custody. Everyone has been nice to me and I am happy to co- operate with these officers and tell them all about what happened to Ruth.'

On October 12, 1955, an indictment was returned by the Grand Jury of Putnam County charging appellant with murder in the first degree. The Putnam Circuit Court, upon appellant's request, appointed James G. Hughes, a competent and reputable attorney of the Putnam County Bar, as his attorney. The cause was submitted to a jury on a plea of not guilty, resulting in a verdict of guilty of murder in the second degree, and appellant was thereupon sentenced to the Indiana State Prison for life.

The Public Defender in his return further states that from his investigation...

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  • Hogan v. Review Bd. of Indiana Dept. of Employment and Training Services
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