Myers v. State

• Decision Date: 29 September 1888
• Docket Number: 14,520
• Citation: 18 N.E. 42,115 Ind. 554
• Parties: Myers v. The State
• Court: Indiana Supreme Court

18 N.E. 42

115 Ind. 554

Myers v. The State

No. 14,520

Supreme Court of Indiana

September 29, 1888

From the Morgan Circuit Court.

The judgment is reversed.

C. G Renner, for appellant.

L. T Michener, Attorney General, and J. H. Gillett, for the State.

OPINION

Zollars, J.

On the 5th day of September, 1887, the grand jury of Morgan county returned an indictment against appellant charging him with grand larceny in the theft of a horse, of the value of one hundred and fifty dollars. On the morning of the following day, after a judgment upon a plea of guilty had been entered upon the order-book, and, with other order-book entries, had been read in open court and signed by the judge appellant, by counsel, moved the court to to set aside the judgment, and to grant him leave to withdraw his plea of guilty, and enter a plea of not guilty. He supported that motion by his own affidavit, and also the affidavits of Joseph W. Paul and George L. Fesler. The affidavits, with the exception of that of Fesler, were written out and sworn to on the evening of the day on which sentence was pronounced.

The substance of appellant's affidavit is, that his plea of guilty was entered under the belief that his punishment should not exceed two years imprisonment in the State prison; that he was poor, without friends, and without money with which to employ an attorney to defend him; that he had no relatives or friends to assist him to employ counsel, or inform him of his rights; that he was ignorant of the law before and at the time he entered his plea of guilty, and acted upon the information of the sheriff who had him in custody, that the prosecuting attorney had agreed that if he would plead guilty his punishment should not exceed two years imprisonment; that, having been in jail for more than a month, without opportunity, or money, to employ counsel, and being ignorant, and relying upon the information furnished by the sheriff, he pleaded guilty, although he was innocent of the charge made against him in the indictment, and has a good defence.

The substance of Paul's affidavit is, that he is, and was, the sheriff of the county in whose custody appellant had been for more than a month before the return of the indictment; that during the time appellant was in his custody he (sheriff) had frequent conversations with him about the charge against him; that he said he was poor and unable to employ an attorney, and asked his (sheriff's) advice; that at appellant's request he went to, and counselled with, the prosecuting attorney, who proposed to accept a plea of guilty on appellant agreeing to accept an imprisonment of two years; that he reported the proposition to appellant, and advised him that, under the circumstances, the best thing to be done would be for him to plead guilty and take two years imprisonment, and told him that the prosecuting attorney would agree to such an arrangement; that appellant claimed that he was innocent, and did not want to plead guilty, and lamented that he was not able to defend himself, or procure assistance or counsel to do so for him, but finally consented to plead guilty and accept the two years imprisonment; that the indictment was returned into court at three o'clock P. M., and appellant was immediately taken into court without the privilege of consulting an attorney, and was arraigned without an opportunity to advise with any one about his case; that at that time the prosecuting attorney was absent from the county, but was represented by his deputy, who agreed, as had his principal, that if appellant would plead guilty the punishment should not exceed two years imprisonment, which agreement he (the sheriff) again communicated to appellant, and again advised him to acquiesce in it; that immediately after appellant had pleaded guilty, the court, without hearing any evidence, adjudged that he should be imprisoned for ten years in the State prison; that immediately afterwards appellant asked that he might have a hearing, and counsel and advice in his behalf, as to his rights under the charge against him, and Mr. Charles G. Renner, an attorney, was afterwards consulted.

The substance of the affidavit by Geo. L. Fesler is, that during appellant's imprisonment he was an assistant about the jail, and had almost daily conversations with him (appellant); that he informed him that the sheriff had told him that the prosecuting attorney had agreed that if he (appellant) would plead guilty, the punishment should not exceed two years imprisonment; that appellant claimed that he was innocent, and did not want to plead guilty; that several such conversations were had; that appellant finally said that he was innocent, but as he was poor and unable to make a defence, he would plead guilty if his punishment should not exceed two years imprisonment; that he reported to appellant that the prosecuting attorney had agreed to such an imprisonment, and advised him to plead guilty. The remaining portion of the affidavit, as to what occurred after the return of the indictment, is substantially the same as that by the sheriff.

These affidavits, without contradiction, or any attempt at contradiction, on the part of the State, stand, as the record shows, as all the evidence given upon the hearing of the motion.

We think that they show very clearly that the...