Murphy v. Daly

• Decision Date: 12 February 1934
• Docket Number: No. 26220.,26220.
• Citation: 206 Ind. 179,188 N.E. 769
• Parties: MURPHY v. DALY, Warden.
• Court: Indiana Supreme Court

206 Ind. 179

188 N.E. 769

MURPHY

v.DALY, Warden.

No. 26220.

Supreme Court of Indiana.

Feb. 12, 1934.

Appeal from La Porte Circuit Court; Harry L. Crumpacker, Judge.

Proceeding by Francis Murphy for writ of habeas corpus to be directed to Walter H. Daly, Warden of the Indiana State Prison. From a judgment remanding petitioner to custody, petitioner appeals.

Affirmed.

Darrow, Rowley & Shields, of La Porte, for appellant.

James M. Ogden, Atty. Gen., Merl M. Wall, Sp. Asst. Atty. Gen., and C. Severin Buschmann, of Indianapolis, for appellee.

MYERS, Judge.

Appellant applied to the court below for a writ of habeas corpus, and for an order discharging him from the Indiana State Prison. The writ was issued and appellee's motion to quash the same was sustained. Appellant refused to plead further and judgment followed, remanding appellant to the custody of appellee. From this judgment, appellant perfected an appeal and assigned as error the ruling of the court quashing the writ.

The record in this case is an exceptional one, in that it appears from the petition that on April 30, 1924, appellant was tried in the Parke circuit court, found guilty of bank robbery, and sentenced to the Indiana State Prison for a term of from 10 to 21 years. On July 16, 1930, appellant filed in the Parke circuit court a petition for a writ of error coram nobis, and the regular judge of that court, Hon. Howard L. Hancock, having been at one time of counsel for appellant, disqualified himself, and the Hon. Charles M. Fortune was appointed special judge who qualified and heard the case of Murphy v. State ex rel. and found for petitioner, entered judgment granting him a new trial, and fixed his bond at $10,000. On appellant's failure to furnish bond, he was remanded to the sheriff of Parke county. Thereafter, in November, 1930, appellant, pursuant to Acts 1881 (Sp. Sess.) p. 240, c. 38, § 780, section 3-1905, Burns' 1933, applied to the Vigo superior court for a writ of habeas corpus, and while this petition was pending, Benjamin F. Stephenson, as prosecuting attorney of Parke county, applied to this court for a writ of prohibition, making Hon. Howard L. Hancock, regular judge of the Parke circuit court, Hon. Charles M. Fortune, special judge, and Hon. Earl Mann, sole judge of the Vigo superior court, parties defendant, asking that each of said defendants be prohibited from exercising any further jurisdiction in the cause wherein the writ of coram nobis was granted, as also the cause asking for a writ of habeas corpus. This court, in State ex rel. Stephenson, Prosecuting Attorney, v. Parke Circuit Court et al., 175 N. E. 895, made the order following:

“Comes now the defendants Howard L. Hancock, as regular judge of the Parke circuit court, Charles M. Fortune, as special judge of the Parke circuit court, and Earl Mann, as regular judge of the Vigo superior court, and file their answers to the plaintiffs' complaint for a writ of prohibition, and, the court having examined and considered the same together with the arguments of counsel heretofore made, and being advised in the premises, it is now ordered that the temporary writ of prohibition herein issued be made permanent, and said defendants Hancock and Fortune are prohibited from entering any further order in the cause of Francis Murphy v. State of Indiana, No. 10385 in the Parke circuit court, and said defendants Mann and his successor in office are prohibited from entering any further order in the cause of ‘In the Matter of the Petition of Francis Murphy to be Let to Bail,’ filed in the Vigo superior court, except that none of the defendants are prohibited from vacating the entries heretofore made by them or ordering the return of said Francis Murphy to the Indiana State Prison.

“[Signed] Myers, Chief Justice.”

This order was made pursuant to a showing, at present material, that appellant, on April 30, 1924, was convicted in the Parke circuit court of bank robbery, cause No. 4794, State v. Francis Murphy, on the criminal docket of that court, Omer B. Ratcliff presiding as special judge; that thereafter, in that court, a petition for a writ of error coram nobis was filed, numbered and entitled as was the original criminal action. On April 29, 1929, a demurrer to appellant's petition for the writ was, by Judge Ratcliff, sustained. No further steps were taken in that cause. Thereafter, on July 16, 1930, a second petition for a writ of error coram nobis was filed and docketed in the Parke circuit court as a civil action, No. 10385. The proceedings in this latter case were terminated by the action of this court in the above order which was made on the theory that all the proceedings had in cause No. 10385 were void.

The object to be attained by a writ of error coram nobis is a new trial, and while it is not a writ of right, yet, in its general features and in its consequences, it is closely analogous to a motion for a new trial. Sanders v. State, 85 Ind. 318, 332, 44 Am. Rep. 29;Partlow v. State, 191 Ind. 657, 134 N. E. 483;State ex rel. Lopez v. Killigrew, 202 Ind. 397, 174 N. E. 808, 74 A. L. R. 631. This court has held that the application for a writ of error coram nobis must be filed as “a part of the proceedings of the cause to which it refers” and in the court that rendered the judgment. Partlow v. State, supra; Berry v. State, 202 Ind. 294, 303, 165 N. E. 61, 173 N....