McDowell v. State

• Decision Date: 19 December 1947
• Docket Number: 28315.
• Citation: 76 N.E.2d 249,225 Ind. 495
• Parties: McDOWELL v. STATE.
• Court: Indiana Supreme Court

76 N.E.2d 249

225 Ind. 495

McDOWELL v. STATE.

No. 28315.

Supreme Court of Indiana

December 19, 1947

Appeal from Circuit Court, Vanderburgh County; Nat H. Youngblood, judge.

Paul Wever, of Evansville, for appellant.

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

YOUNG Judge.

On December 6, 1943, prosecution of the appellant was started by an affidavit filed in the Vanderburgh Circuit Court charging him with first degree burglary. He was arraigned and pleaded guilty and sentenced to 10 to 20 years in the Indiana State Prison. On July 6, 1946, he filed a petition for a writ of error coram nobis. The writ was granted on September 5, 1946 and defendant was ordered returned from the state prison to Vanderburgh County for a second trial and on October 3, 1946, the court appointed an attorney to defend him. On November 26, appellant refused to plead to the charge contained in the affidavit and the court entered a plea of not guilty for him and the cause was set for trial by jury on December 27, 1946.

On December 27, 1946, another attorney entered his appearance for appellant and the attorney appointed by the court withdrew his appearance and the trial proceeded. Evidence was heard and the jury returned a verdict of guilty of first degree burglary and thereafter appellant was again sentenced to 10 to 20 years imprisonment in the state prison.

On January 23, 1947, appellant filed his verified petition to appeal as a poor person which was sustained by the court and counsel was appointed to represent him on appeal. On January 25, a motion for a new trial was filed. On February 26, the motion for a new trial was overruled. Bills of exceptions containing the evidence and instructions were filed in time.

Under our Constitution, Art. 1, § 13, appellant has a right to be heard by himself as well as counsel and in this case appellant elected to prepare his own specifications of alleged irregularities in the proceedings and errors of law occurring at the trial which his counsel incorporated by reference in a motion for a new trial. Appellant also prepared his own points and authorities and argument for his brief in this court. His counsel incorporated them in the brief after preparing the more formal parts.

In the motion for a new trial appellant challenged the sufficiency of the evidence. There is ample evidence from which the jury could have found that appellant entered a residence in Evansville, Indiana, in the very early morning of December 6, 1943. He roused the occupants of the house and was captured on the premises with property belonging to the occupants of the house in his possession. He also had upon him several screw drivers and a quantity of whiskey and policemen testified that one of the screw drivers fitted into marred places on the basement door of the house through which appellant entered. The evidence was amply sufficient to support the verdict.

It appears that appellant's chief grievances are that, having once been tried and convicted, he should not have been subjected to a second trial for the same offense, and that, after having served a part of the sentence first imposed upon him, the judgment in the second trial should not have required that he be returned to prison to serve a second sentence of a like term for the same offense without credit for the three years served under the first sentence.

In the case of State ex rel. v. Killigrew, 1931, 202 Ind. 397, 174 N.E. 808, 74 A.L.R. 631, these questions have been thoroughly discussed and decided by this court against the contention of appellant. In that case the entire sentence imposed at the first trial had been served and this court in discussing the situation of the defendant at a second trial, if a writ of error coram nobis should be granted, held that the constitutional immunity under the prior jeopardy doctrine may be waived and is waived by seeking a new trial, and said at the bottom of page 406 of 202 Ind., at page 811 of 174 N.E.: 'Since we conclude that the legal consequence of granting a writ coram nobis is to place 'the parties in the same position as if no trial had been had,' it follows that if the criminal court of Lake county, after a hearing on the merits of relator's petition, should grant a writ coram nobis, the relator will not be able, in the new trial, to get any advantage from the fact that he had discharged the judgment of the original trial. * * *' And at the bottom of page 407 of 202 Ind., at page 812 of 174 N.E.: '* * * We find no difficulty in deciding that the relator, if put on trial a second time, cannot avail himself of the fact that he has discharged the judgment of the original trial.'

The law stated in the Killigrew case is generally accepted. In 15 Am.Jur., p. 89, Criminal Law, § 427, it is stated: 'It is generally conceded that a person convicted of a crime waives his constitutional protection against being put twice in jeopardy and may be tried again where a verdict against him is set aside and a new trial granted on his motion in the trial court or a conviction is reversed on appeal or error proceedings instituted by him. This is true even though he has served a part of the sentence imposed on him on the first conviction. * * * In the application of this rule, the ground on which a new trial is granted is not material. Therefore where a conviction and judgment are set aside on proceedings instituted by the defendant on the ground that he has been deprived of a right guaranteed to...