Partlow v. State

• Decision Date: 03 July 1924
• Docket Number: No. 23731.,23731.
• Parties: PARTLOW v. STATE.
• Court: Indiana Supreme Court

195 Ind. 164

144 N.E. 661

PARTLOW

v.STATE.

No. 23731.

Supreme Court of Indiana.

July 3, 1924.

Original proceeding by John L. Partlow for permission to file motion for new trial. Petition granted.Arthur R. Robinson, Frank A. Symmes, Garth B. Melson, and Fitzpatrick & Fitzpatrick, all of Indianapolis, and Christian & Waltz, of Noblesville, for appellant.

U. S. Lesh, Atty. Gen., for the State.

TRAVIS, J.

The relief sought by this proceeding is based upon an original verified petition filed in this court, praying that the appellant be granted leave to file his motion for a new trial in the Marion criminal court, the court which tried the cause in this case, and from which court an appeal was taken to this court and affirmed. Partlow v. State, 191 Ind. 660, 128 N. E. 436. The petition is based upon the presentation of new matter and evidence disclosed by the sworn confessions of Carl E. Bernauer and Thomas Sterrett, who were witnesses in behalf of the state upon the trial of appellant in the nisi prius court, as shown by their affidavits. The charge for which appellant stands convicted was for knowingly receiving a certain automobile, then the property of one Bert Ashley, from Thomas Sterrett and Carl E. Bernauer, the confessed thieves who stole the automobile. In the trial of the case in the court below Bert Ashley testified to the corpus delicti and the venue. Three police officers of the city of Indianapolis testified to the confessions made by Bernauer and Sterrett, which led to the arrest of appellant, and his going with them to a garage in the city of Indianapolis in which he had an interest as a stockholder and general manager, and showing to them the automobile which was the subject of the crime charged. Sterrett and Bernauer testified in behalf of the state, admitting that they stole the automobile which belonged to Ashley, and took it to the garage mentioned and received therefor a storage check, which was delivered to appellant upon his paying to them the sum of $50, and that the matter of the sale had been arranged with appellant, prior to the theft of this automobile, in a conversation between appellant and these witnesses, wherein he was to pay them for stolen automobiles delivered to him at this garage, and that he actually did pay them the sum stated for Ashley's automobile. At the trial, in his own behalf, appellant by his testimony denied unequivocally the accusation made by the charge of the crime, and denied all of the evidence given by both the witnesses Bernauer and Sterrett, and that he did not know that the automobile in question was in the garage until called to his attention by the police, but that it had been received for storage at the garage in the nighttime by the man in charge in regular course of business, and that a regular check had been given as a receipt for the stored automobile.

After conviction of appellant and judgment, Bernauer, on the 25th day of December, 1920, made and executed his affidavit in which he confessed that he and Sterrett did steal the automobile in question, with a great number of others, which were stored in the garage in question, owned and operated by the Partlow Jenkins Motor Car Company, a corporation; that the automobile here in question was stored at this garage at night; that they received the customary storage tag or receipt from the night man who received the automobile; that appellant, Partlow, was not at the garage at the time this automobile was delivered there for storage; that Partlow had nothing whatever to do in any way with the stealing of this automobile or any other automobile, and had nothing to do with the storage of this automobile or any of them, or with receiving them for storage; that Partlow had never employed either affiant or Sterrett to steal the automobile; that he had not at any time paid either himself or Sterrett for the automobile or any automobiles, or for stealing this or any automobile; that Partlow never at any time purchased this automobile or any others so stolen, and that the one in question and the others by them stolen were simply stored in this garage in the ordinary manner; that affiant and Sterrett had never told any one prior to their arrest that the automobiles were stolen; that affiant did not even know Partlow prior to his arrest, and had never talked to him in his life; that prior to his arrest Sterrett had never talked to Partlow in his presence; that shortly after the arrest of affiant and Sterrett, and while incarcerated in the Marion county jail together, they planned the story which they told to the detectives and police, and which was given in evidence by the policemen and witnesses in the trial of the cause. Affiant in the affidavit says that he and Sterrett planned the story and “framed the same up in the hope that we would make Partlow the ‘fall guy,’ and that, in consideration of our testimony against Partlow, we would be released or sentence would be suspended,” and that while in jail before appellant's trial Sterrett reminded affiant that affiant had a charge of grand larceny against him and a suspended sentence of two to fourteen years, and that, if affiant did not tell the same story Sterrett did, affiant would likely have to do time, and they thereupon agreed upon the story they told upon the witness stand in the trial of appellant. Affiant further said in his affidavit that Partlow is entirely innocent and never had any connection whatever with himself and Sterrett or with the stolen automobiles, and that appellant could not have known that the automobile was stolen, and further that appellant never did receive any of the stolen automobiles directly or indirectly, and that the automobiles were stored in the garage in their own right and possession and without the knowledge, co–operation, or assistance of Partlow. Thereafter, on August 25, 1923, Sterrett made a confession by his affidavit which was practically the same as the affidavit made by Bernauer, but yet much shorter, in different language, and made before a different officer.

The only evidence in the trial of the original case, tending to incriminate appellant, besides the evidence of Bernauer and Sterrett, was the mere finding of the automobile in question with others, in the garage in which appellant had an interest as a stockholder and general manager. Between the time of the decision of this court, affirming the judgment of the lower court upon appeal, and the filing of the petition herein, appellant sought to gain a new trial by virtue of two actions petitioning for a writ of error coram nobis (191 Ind. 657, 134 N. E. 483, and 141 N. E. 513), which two actions were begun in the Marion criminal court, the court which tried the original cause. In both of the cases for writ of error coram nobis appellant suffered adverse judgments, from each of which he appealed to this court, both of which appeals were decided against him.

Appellant's proposition under this petition is that he is entitled to a new trial because of his conviction through fraud of having received stolen goods, in that the only evidence in the case in proof of his having committed the crime, and upon which a verdict of guilty could be based, was that given by the two witnesses Bernauer and Sterrett, and that, as shown by his verified petition, the evidence given by them was false and perjured, and that he has a valid defense to the action.

[1] There are two questions to be considered to reach a conclusion upon the petition: First, the jurisdiction of this court to entertain the petition, and, second, the merits thereof. The decisions of the courts of the different...