Scharbrough v. State
| Decision Date | 04 January 1968 |
| Docket Number | No. 30882,30882 |
| Citation | 249 Ind. 316,232 N.E.2d 592 |
| Parties | Chester R. SCHARBROUGH, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John J. Dillon, Atty. Gen., Charles, J. Deiter, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was tried jointly with Jerry Wayne Garrison before a jury. Count One charged the appellant with first degree murder and Count Two with murder in the perpetration of a robbery. The appellant was found guilty of murder in the second degree and sentenced to life imprisonment.
The sole assignment of errors is the overruling of the motion for a new trial and specifically the contention therein that the appellant was misled in failing to make a proper defense by reason of the promises and representations of the State of Indiana through the prosecuting attorney. This specification was supported by an affidavit made a part of the motion for a new trial, which read as follows:
AFFIDAVIT IN SUPPORT OF MOTION FOR NEW TRIAL BY CHESTER R. SCHARBROUGH
Waldo C. Ging being first duly sworn upon his oath says that:
1.
He has been a practicing attorney in Hancock County, Indiana and surrounding counties for about 45 years and during such time has continuously maintained an office in the City of Greenfield, Indiana.
2.
Affiant further says that the above entitled cause involved an indictment against said Chester R. Scharbrough and another, Jerry Wayne Garrison, returned by a Marion County, Indiana Grand Jury charging each with the offense of First Degree Murder. That said action was venued to Hancock County, Indiana from said Marion County, Indiana.
3.
That shortly after said cause was docketed in Hancock County, Indiana, the Honorable George B. Davis, Judge of said Hancock Circuit Court, appointed affiant to appear for and represent said defendant, Chester R. Scharbrough, said appointment being made on October 19, 1964.
4.
That affiant accepted said appointment and from said last mentioned date to the present time has acted as attorney for said defendant, Chester R. Scharbrough.
5.
That while acting as attorney for said defendant, Chester R. Scharbrough, affiant frequently talked to the police officers and Marion County deputy prosecuting attorney in charge of said prosecution and learned from them that said defendant, Scharbrough, greatly assisted them in getting the facts regarding the killing alleged in said indictment and had given said police investigation officers an oral and written statement of the facts as he understood them to be, and that by reason thereof said officers felt kindly toward said defendant, Scharbrough, and felt that he should be given an opportunity to enter a plea of guilty to the included offense of manslaughter.
6.
That the trial of said defendant began in the Hancock Circuit Court on April 30, 1965. Before the commencement of said trial it was agreed and understood by this affiant and his said client that at a time, to be determined by the state's attorneys, said defendant, Scharbrough, was to be permitted to plead guilty to the offense of manslaughter.
7.
That it was further understood and agreed that neither this affiant nor his said client should do anything during the trial of said cause which would make the task of the prosecuting attorney more difficult in their effort to convict the other defendant, Garrison, who was alleged to have fired the fatal shots.
8.
That affiant was reassured by the state's attorneys, many, many times during the lengthy trial, that at the proper time and when it would do the state's case against Garrison, the least harm and damage, defendant, Scharbrough, would be allowed to enter his plea of guilty to manslaughter.
9.
That affiant relied upon the many promises so made by the state and took very little part in the trial and in the cross examination of witnesses or in the effort to keep testimony from the jury, but sat complacently with his client, waiting for the proper time to have him enter his plea.
10.
That many times each day of the trial, this Affiant assured his client that his guilt or innocence would not be determined by the jury, but that everything was settled providing neither affiant nor his client made conviction of defendant, Garrison, more difficult.
11.
That it was further understood and agreed that the defendant, Scharbrough, would testify in the trial, if in the opinion of the attorney for the state, his testimony was needed to present an impregnable case against said Garrison. That affiant's said client at all times, was present and willing to testify as a witness, according to the aforesaid understanding and agreement as hereinabove set out, but the attorneys for the state did not at anytime request that he be used as a witness.
12.
That at no time during said trial did the State of Indiana indicate to affiant that the proper time had arrived for defendant, Scharbrough, to withdraw his plea of not guilty and to enter his plea of guilty to the included offense of manslaughter in Count 1 of the Indictment.
13.
That at the conclusion of all the evidence in the case, affiant on behalf of his client, Scharbrough, orally moved the Court for permission to withdraw his plea of not guilty to the first count of the indictment and asked permission of the Court to enter a plea of guilty to the included offense of manslaughter with the understanding that the State of Indiana would dismiss Count 2 of said indictment. This motion the Court overruled.
14.
The cause was then submitted to the jury after argument and instructions of the Court and on the said day a verdict was returned finding each defendant guilty of murder in the second degree.
15.
That because of the understanding this affiant had with the attorneys for the state and to carry into effect said understanding, affiant, in his argument to the jury was obliged to and did request that the jury find defendant, Scharbrough guilty of manslaughter.
That this affiant, in his years as a practicing attorney, has defended, in jury trials, dozens of persons charged with violation of the criminal law of Indiana, and this is the first time affiant did not ask an acquittal for his client, but to carry out what affiant felt was a binding agreement, had no alternative but to ask for a manslaughter verdict for his client.
16.
Affiant says that he relied upon the substance of the many conferences had with the representatives of the State of Indiana and their assurances and promises and after discovery of the fact that they were not to be carried out, it was then too late to do anything to protect the welfare of his client and your affiant does not believe that ordinary prudence could have protected his client's interest.
17.
That defendant, Scharbrough, had no legal training and relied absolutely upon the assurances many times expressed to him by affiant that his interests were being first considered by affiant.
18.
That under all the facts and circumstances herein briefly set forth, affiant can truthfully say that he was greatly surprised and mislead and could not and did not make a full defense upon the trial. That both this affiant and his said client were lulled into a sense of false security and did very little of a beneficial nature during the trial of this cause, as they at all times were imbued with the idea that everything had been done which needed to be done.
19.
That this affiant submits that his client is a victim of an injustice resulting by reason of the aforesaid...
To continue reading
Request your trial
-
Parsons v. State
...to withdraw a plea of guilty and enter a plea of not guilty.' (Emphasis added.) 300 N.E.2d at 355. See also, Scharbrough v. State (1968), 249 Ind. 316, 232 N.E.2d 592; United States v. Jackson, 390 F.2d 130 (7th Cir. 1968). There is no merit to Parsons' contention that a trial court must he......
-
Lagenour v. State
... ... Finger v. State (1973), 260 Ind. 148, 293 N.E.2d 25; Scharbrough v. State (1968), 249 Ind. 316, 232 N.E.2d 592 ... [268 Ind. 448] The specific facts averred by appellant are: (1) that the prosecutor did not disclose the memorandum of appellant's statement; and (2) that the memorandum was in the handwriting of the prosecutor ... ...
-
Jewell v. State, 47A05-9212-CR-430
... ... In Majko, 503 N.E.2d 898, our supreme court held: ... If the affidavit [submitted pursuant to T.R. 59 and C.R. 17] is uncontradicted, the reviewing court must accept its contents ... as true. As we stated in [Scharbrough v. State (1968), 249 Ind. 316, 232 N.E.2d 592], 'This court is at a loss to understand why no counter-affidavit was filed as to what is set out in the supporting affidavit to the motion for a new trial, if it was not the truth. We are bound under our rules to accept the affidavit as the truth, ... ...
-
Harris v. State
... ... Merry v. State, (1975) 166 Ind.App. 199, 335 N.E.2d 249; Stevenson v. State, (1975) 163 Ind.App. 399, 324 N.E.2d 509. If the affidavit is uncontradicted, the appellate court must accept its contents as true. Scharbrough v. State, (1968) 249 Ind. 316, 232 N.E.2d 592. Thus there is a mechanism available to a defendant to bring facts dehors the record before the trial court and the Court of Appeals ... In the case at bar, an affidavit was filed. However, it only alleges that, if an evidentiary ... ...