Mooney v. State

• Decision Date: 11 June 1965
• Docket Number: No. 0-714,0-714
• Citation: 246 Ind. 570,207 N.E.2d 623
• Parties: George W. MOONEY, Petitioner, v. STATE of Indiana, Respondent.
• Court: Indiana Supreme Court

Page 623

207 N.E.2d 623

246 Ind. 570

George W. MOONEY, Petitioner, v. STATE of Indiana, Respondent.

No. 0-714.

Supreme Court of Indiana.

June 11, 1965.

George W. Mooney, pro se.

John Dillon, Atty. Gen., for respondent.

PER CURIAM.

We have before us in this cause the prisoner's petition for writ of certiorari from which it appears that the prisoner on March 11, 1954, was charged by affidavit with the rape of an eleven year old girl, that he was represented by attorneys, that he pleaded not guilty and thereafter was tried by jury resulting in his conviction and sentence to the Indiana State Prison for life.

It further appears therefrom as follows, viz:

That his attorneys within the statutory time filed a proper and timely motion for new trial on September 17, 1954, and thereafter on October 13, 1954, filed supplemental sub-paragraphs H and I of paragraph 3 of the motion for new trial. That one attorney died before the ruling by the court on his motion for new trial and thereafter on September 16, 1957, the prisoner filed motion to dismiss the pending motion for new trial; that the petitioner learned his previous motion for new trial had not been ruled on when he attempted to file petition for writ of error coram nobis and was advised by the clerk of the court that the said motions for new trial were still pending and should be disposed of before filing the petition for error coram nobis. That the Allen Circuit Court should not have allowed the motions for new trial which were prepared with the aid of a certified transcript and filed by trial counsel to be dismissed by petitioner without being ruled on. That petitioner (who has filed a 5 page typewritten petition for certiorari in this Court with accompanying papers totaling 49 pages) is an illiterate person and did not waive his constitutional rights to have the trial court rule on his motions for new trial.

That the 'QUESTION PRESENTED FOR REVIEW' urged by petitioner is that '* * * the statutes of the State of Indiana, in prosecutions for rape, require proof of penetration, to be sufficient evidence of the commission of the offense. That the testimony of the State's witness Dr. N. E. Aiken, * * * showed that penetration was not established as required by Burns' Indiana Statutes, Section 9-1611 of the Acts 1905, Ch. 169, Sec. 243, P. 584, and Dr. N. E. Aiken, by way of affidavit, stated: 'The labia and [sic] hymen were inflamed and swollen, and that a few spots seemed ready to bleed.'

Petitioner contends there was no evidence direct or circumstantial or from which proper inferences might be drawn that petitioner was ever, at any time, guilty of rape as alleged in the affidavit and which would sustain the verdict of the jury. Petitioner filed before the Allen Circuit Court his belated motion for new trial for the purpose of determining whether there was substantial evidence to support the material facts required to sustain the jury's verdict of guilty which motion was overruled on February 27, 1964.

Upon the filing of petitioner's petition for writ of certiorari in this Court we referred the matter to the public defender of the State of Indiana who was ordered to show cause why certiorari should not issue. The public defender thereafter filed answer to the rule to show cause. The public defender's answer points out that although petitioner states he is an...