Moore v. State
| Decision Date | 19 March 1953 |
| Docket Number | No. 28884,28884 |
| Citation | 111 N.E.2d 47,231 Ind. 690 |
| Parties | MOORE v. STATE. |
| Court | Indiana Supreme Court |
T. Ernest Maholm, Indianapolis, for appellant.
J. Emmett McManamon, former Atty. Gen., John Ready O'Connor and William T. McClain, Deputy Attys. Gen., Edwin K. Steers, Atty. Gen., for appellee.
This is an appeal from a judgment and order of the trial court denying relief on appellant's petition for a writ of error coram nobis. The assignment of errors here complies with Rule 2-40 as adopted May 29, 1945.
The 'Argument' section of appellant's brief does not comply with Rule 2-17(e) in that no cases are cited to sustain appellant's contention that he was deprived of any legal or constitutional right before or at the time he entered the plea of guilty to a charge of grand larceny. 1 However, we have examined the entire record, and find nothing in it that would warrant us in deciding that the judgment should be vacated and annulled and the plea of guilty set aside.
In the record we find the statement by the trial judge stating the reasons for denying relief to appellant. This is not properly a part of the record, and we do not consider it in affirming the action of the trial court. The gravamen of his petition is that he was denied adequate representation by competent counsel before he entered his plea of guilty. The State put the petition at issue by filing an answer which denied appellant's averments as to the alleged denial of his legal and constitutional rights.
Appellant was returned from the state prison for the hearing on the petition, and he testified in his own behalf. His counsel at the time he entered the plea also testified, and the State by its evidence controverted all of the petitioner's evidence touching the material issues raised by his petition.
After a petition for a writ of error coram nobis has been denied by a trial court, the presumption on appeal is that the action by the trial court is correct. Garrett v. State, 1939, 216 Ind. 52, 22 N.E.2d 981. The presumption is that the judgment of conviction, which was valid on its face, was procured by due course of law. Sells v. State, Ind.Sup.1952, 107 N.E.2d 264; State v. Lindsey, Ind.Sup.1952, 106 N.E.2d 230. The burden is on the appellant to prove by fair preponderance of the evidence that he was denied his legal or constitutional rights. Thompson v. State, 1947, 225 Ind. 78, 72 N.E.2d 744; Sells v. State, Ind.Sup.1952, 107 N.E.2d 264, supra. When the action of the trial court is brought before us for review, we do not weigh conflicting evidence or determine the credibility of any of the witnesses. Quinn v. State, 1935, 209 Ind. 316, 198 N.E. 70; Thompson v. State, 1947, 225 Ind. 78, 72 N.E.2d 744, supra; State v. Lindsey, Ind.Sup.1952, 106 N.E.2d 230, supra; Sells v. State, Ind.Sup.1952, 107 N.E.2d 264, supra.
The evidence discloses appellant failed to sustain his burden of proof. On Saturday, May 20, 1950, appellant was arrested in Illinois for the theft of a hog in Newton County, Indiana. He signed a waiver of extradition proceedings, and was placed in the Newton County jail Saturday night. That night his wife came to see him in the jail, and he instructed her to get his lawyer, although she was not permitted to visit with him at that time. On Monday, May 22nd, Ralph Bower entered his appearance as attorney of record for appellant. Appellant's counsel had been admitted to the bar of this state in 1934, had served for over a year as Judge of the Newton Circuit Court, and had been employed in several hundred criminal cases. The petition for the writ was an attack upon the professional integrity and competency of counsel, and under such circumstances the competency of the attorney as a witness is waived by the client. Fluty v. State, 1947, 224 Ind. 652, 71 N.E.2d 565. Mr. Bower testified that appellant told him he had signed a confession to the crime. He told appellant he had the right to plead not guilty and have a jury trial, and that he did not have to give evidence against himself. Appellant did not state the confession was untrue, and the trial court was warranted in finding no threats, coercion or inducements were used to obtain it. Mr. Bower had a conference of about thirty minutes with appellant in jail on Tuesday, after he had talked about the case with appellant's wife, and the matter of obtaining the bond was then considered. They discussed who were listed as witnesses. Appellant's counsel did not advise him to plead guilty, but he understood from the conference that appellant would enter a plea of guilty. The...
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...services or otherwise attacks the professional competence of an attorney. Nave v. Baird (1859), 12 Ind. 318; Moore v. State (1953), 231 Ind. 690, 111 N.E.2d 47. Under similar circumstances, the physician-patient privilege is inapplicable. Lane v. Boicourt (1891), 128 Ind. 420, 27 N.E. 1111;......
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