Rhodes v. State

• Citation: 156 N.E. 389,199 Ind. 183
• Decision Date: 27 April 1927
• Docket Number: 25,235
• Parties: Rhodes v. State of Indiana
• Court: Supreme Court of Indiana

156 N.E. 389

199 Ind. 183

Rhodes v. State of Indiana

No. 25,235

Supreme Court of Indiana

April 27, 1927

1. CRIMINAL LAW.---Writ of coram nobis, when proper.---The writ of coram nobis is not intended to authorize a trial court to review and revise its decision, but only to enable it to recall some adjudication, made while some fact existed which if before the court, would have precluded the rendition of the judgment, and which, without any fault or negligence of the applicant therefor, was not presented to the court. p 192.

2. ATTORNEY AND CLIENT.---Client takes the risk where he refuses to follow advice given after being fully informed as to the true situation.---Where an attorney exerts his best endeavors to inform a client charged with crime of the true situation and of what he may be required to meet, after a careful review of the facts on which success or defeat depends and the client refuses to follow the advice given, he takes the risk. p. 193.

3. CRIMINAL LAW.---Duty of court in receiving plea of guilty from one charged with serious crime and not represented by counsel.---A court should not receive a plea of guilty from a defendant charged with a serious crime, who is not represented by counsel, until after reasonable inquiry into the facts to discover whether the plea is entered freely and understandingly, and merely explaining to the defendant the penalty that might be imposed on him is not sufficient p. 194.

4. CRIMINAL LAW.---Writ of coram nobis held proper.---Accepting plea of guilty of murder in the first degree from an accused who had not been advised by counsel or the court as to the essential elements of the crime charged was an abuse of discretion, especially when he declared that he was unacquainted with the law of this state defining murder, and justified the granting of a writ of coram nobis, with direction to the trial court to permit the withdrawal of the plea of guilty. p. 195.

From Knox Circuit Court; Thomas B. Coulter, Judge.

Dryfus Rhodes was allowed to plead guilty to the charge of murder in the first degree, and the death penalty was imposed by the court, without being advised as to the elements of the crime. He applied to the court for a writ of coram nobis, which was denied, and he appeals.

Reversed.

Shuler McCormick, Arnold J. Padgett and George B. Hazelton, for appellant.

Arthur L. Gilliom, Attorney-General and Edward J. Lennon, Jr., Deputy Attorney-General, for the State.

Myers J. Willoughby, J., not participating.

OPINION

Myers, J.

On April 6, 1926, appellant, in the court below, was indicted for murder in the first degree. Immediately upon the return of the indictment, and before the grand jury had time to disperse, the sheriff of Knox county brought appellant into open court and the charge was read to him by the prosecuting attorney. The court then requested him to plead, whereupon he answered that he was guilty. The next day, April 7, the court, upon the prisoner's plea, adjudged him guilty of murder in the first degree and that he suffer death. On May 3, 1926, he applied to the Knox Circuit Court for a writ of coram nobis (Sanders v. State [1882], 85 Ind. 318, 44 Am Rep. 29) which was denied. From that ruling, he appealed and has assigned the same as error in this court.

We have read and considered carefully the verified application for the writ, affidavits in support thereof, and counter-affidavits, being the entire evidence upon which the ruling below denying the writ was made. That same record is before this court for review, supported by the presumption of correct action below.

Appellant's petition seems to be a frank disclosure of facts concerning his entire life, including a recital of the facts relative to the homicide with which he was charged and pleaded guilty. It covers seventeen typewritten pages of the record, and exhibits facts asserted to exist at the time he was sentenced relative to the then public activities, the evident zealous efforts of the officers, and, we may add, appellant's attitude, shown by counter-affidavits and reported to the court concerning his punishment after plea, might reasonably have had the effect of prejudicing the mind of the court unconsciously against him then, and, even later, when called upon, as here, to exercise a sound legal discretion.

Conceding that the record of his life, whether upright or as a desperado, might have some controlling influence in fixing the punishment, yet the sole question here is: Did he enter his plea of guilty fully advised of the effects of such a plea and of his rights, under the facts, afforded him by the laws of the State of Indiana? Generally speaking, there is no conflict as to the material facts.

Rhodes was a citizen of the State of Oklahoma. He came to Indiana for the first time March 20, 1926, with one Albert King, and to the home of a sister of King's at Bicknell. They remained there until April 1, 1926, when he, King, and the latter's brother-in-law, went to Vincennes in appellant's car, which they parked on North Sixth street a short distance from Main street. They walked about the business district until they came to the candy store of Peter Bourleakas, where Rhodes purchased a package of cigarettes, paying for the same with a new five-dollar bill received by him in a hold-up of an Arkansas bank, and was given the proper change. He then left the store and joined King a block away, and thence in the direction of the automobile, intending to leave the city. Rhodes states that two men dressed in citizen's clothing came up behind them and one exclaimed: "That is the man, that is the man." He recognized Bourleakas, turned and demanded of him "What the hell do you want." At the same time he attempted to draw his gun, which he accidentally discharged, mortally wounding Simon A. Carrie who was a few feet behind Bourleakas. Bourleakas and a nearby policeman say that when Bourleakas pointed out these men to the officers, they crossed the street in the direction of Rhodes and King, Bourleakas about ten feet ahead of Carrie and Hindman in the rear of Carrie. Bourleakas says he walked up to the men (Rhodes and King) and said to the officers: "These are the fellows that gave me the five-dollar bill." Rhodes and King then turned around, each drawing a gun. Bourleakas jumped in one direction and Hindman in another, and Carrie, who had not said anything, stood still on the sidewalk. Rhodes and King fired shots and Carrie fell. Three other persons who witnessed the shooting say that the fatal shot was fired by King, and that Rhodes shot from the hip. Rhodes says he had no intention of taking human life, or even to discharge his gun, his thought being to "stick up" two civilians who, he believed, would cower until he could reach his automobile and escape. He says other shots were fired, both by King and the officer, but none other by him. Other witnesses say that both Rhodes and King backed across the street firing shots, and when they reached the automobile, Rhodes took the wheel and King continued to shoot until he was seriously wounded. Rhodes, being unable to start the machine, seized King's revolver, commandeered another automobile and was driven into the country and abandoned. He walked to Bicknell, arriving there late the next day. The following day, April 3, when discovered by a posse of forty or fifty officers and men, he attempted to flee and was shot at fifty or sixty times, and, although armed, he did not return the fire, but threw his guns away and threw up his hands. In this position, he was surrounded, and persons who were not of the searching party say he was thrown down and dragged a piece, and but for the interference of other members of the posse, he would have been injured. He was searched and then taken to the city hall in Vincennes, where he was questioned, and then lodged in jail, where he remained until, by the sheriff--April 6--he was taken into open court for arraignment and plea to an indictment for murder in the first degree. The indictment was read to him by the prosecuting attorney, whereupon the court said: "You have heard the reading of the indictment, how do you plead--guilty or not guilty?" Rhodes: "I am guilty, sir." The court: "Do you know the effect of a plea of guilty in this case, and what the penalty is for the crime charged?" Rhodes: "No, not in this state." The court: "It means there will be no trial or no hearing of evidence, but upon your plea you will be sentenced without further proceedings, and there will remain only the determination of the extent of the penalty. The indictment in this case charges you with first degree murder and the penalty for that under the law is that you be confined to the state prison during life or you may suffer death. Do you understand the effect of your plea and with that understanding, what do you say? Is it still your desire to plead guilty?" Rhodes: "Yes, sir, I understand. I have no reason why I shouldn't plead guilty." The court: "I simply want you to appreciate fully what you are doing. There can be no plea of guilty today and something else later. How old are you?" Rhodes: "Twenty-five." The court: "Have you consulted with any attorney about your matter or have you had an opportunity to advise with an attorney?" Rhodes: "I have not." The court: "Have you the means of employing an attorney?" Rhodes: "I have no means to employ one." The court: "Do you desire to have an attorney?" Rhodes: "I don't know whether it would do any good." The court: "If you have no means of employing an attorney, the law gives you that right. If you are not able to employ counsel, it is the duty of the court to appoint counsel for you. Is it your desire that counsel be appointed to advise with you?" Rhodes: "Well, you can send one...