Schmittler v. State, No. 28620

Docket NºNo. 28620
Citation228 Ind. 450, 93 N.E.2d 184
Case DateJune 22, 1950
CourtSupreme Court of Indiana

Page 184

93 N.E.2d 184
228 Ind. 450
SCHMITTLER

v.
STATE
No. 28620.
Supreme Court of Indiana.
June 22, 1950.

[228 Ind. 453]

Page 185

Lockyear & Lopp, Theodore Lockyear, James D. Lopp, Evansville, for appellant.

J. Emmett McManamon, Atty. Gen., Frank E. Coughlin, Deputy Atty. Gen., for appellee.

STARR, Judge.

This is an appeal from a judgment of the Posey Circuit Court denying appellant's petition for a writ of error coram nobis against the State of Indiana, appellee herein. The appellant has assigned as error that the decision is contrary to law.

The record discloses that the appellant filed his verified petition for the writ and that the appellee in due course filed its answer thereto which put the cause at issue.

The allegations of appellant's petition are substantially as follows: That on March 30, 1949, an affidavit in two counts was filed in the Posey Circuit Court charging appellant in count one thereof with second degree burglary, and in count two thereof with grand larceny. That appellant was jointly charged in said affidavit with one Jack Jones and one Cyril Broster. That this affidavit charged appellant and his codefendants with the commission of the offenses on or about March 28, 1949. That on April 1, 1949, appellant entered his plea of guilty in said Circuit Court to each count of the indictment upon the advice of Jesse E. Wade, a member of the bar of said court. That the second count of the affidavit was dismissed at the time the plea of guilty was entered; that upon said plea the court sentenced appellant on the first count to the Indiana Reformatory, which sentence appellant is now [228 Ind. 454] serving. That appellant was arrested March 29, 1949, by members of the Indiana State Police at New Harmony, Indiana, and that at that time said officers illegally searched appellant's automobile without a search warrant and obtained evidence which they thereafter threatened to use against him upon the trial of the cause which they informed appellant they would institute against him. That said officers did not at any time fully inform appellant of the nature of the accusation against him nor advise him of his rights, including his right to counsel, and did not permit him to communicate with his parents; nor did said officers take him before the nearest magistrate to be charged and informed as provided by law, but instead transported him to the State Police Post at Jasper, Indiana, where they subjected him to questioning for several hours and finally induced him to sign a paper purporting to be a confession which they threatened to use against him upon the trial of the cause which they informed him they would institute in Posey County against him. That from the time of his arrest, and during the time he was being transported to and from Jasper, and while there, he was denied access to an attorney and to his parents. That said officers, on March 31, 1949, returned him to Posey County and turned him over to the sheriff of that county who then permitted him to contact his parents

Page 186

who were informed that if they would make good the property alleged to have been taken that the charges would be dropped. That his parents then reimbursed the owner for his alleged loss; that his mother, on the night of March 31, 1949, visited him at the county jail but his parents did not at that time employ counsel as they thought the case was to be dropped, and for the same reason his father did not visit him or put in his appearance[228 Ind. 455] when he entered his plea. That the appellant, about fifteen minutes before he was called upon to enter his plea, availed himself of the services of said attorney Jesse E. Wade who had been previously engaged to represent one of appellant's co-defendants. That up until the time of entering his plea appellant had no opportunity to discuss with any person, including his attorney, his predicament and his position with reference to the criminal charges against him, and had not been advised of his constitutional rights. That said attorney was paid by appellant's mother the sum of $5 for his services. That when he was called upon to plead it was falsely rumored in the court room that he was wanted by the law enforcement officers of Illinois, which rumor was believed and indulged in by the said Wade; that he pleaded guilty on the advice of his attorney, believing, by reason of the representation made to him by his attorney and the police officers then in attendance in court, he would be given a suspended sentence because of his previous good record and character; that at the time of entering his plea he was twenty-one years of age, had never been in any trouble, had never been in court, and was unfamiliar with his right in the premises and to be heard and to present evidence in mitigation of punishment; that although several persons were in the court room, including his mother, when he pleaded guilty, who could have testified as to his good character, his attorney failed to call any of them or request the court to hear any of them, or other evidence on the question of mitigation of punishment and the propriety of a suspended sentence.

This petition is argumentative throughout. Stripped of all excess verbiage it merely alleges and sets out that appellant, at the time of entering his plea of guilty, was not adequately represented by counsel, and [228 Ind. 456] that his attorney did not advise him of his 'constitutional rights', although no specific failure in that regard is relied upon. It is an attempt to show that Mr. Wade made no serious effort to advise and defend the appellant and that his services were merely perfunctory.

The evidence in this cause consisted of the verified petition of appellant which was introduced into evidence by him. Appellant also introduced what purports to be an exhibit to his petition. This exhibit sets out the minutes and records of the doings of the trial court when appellant and his co-defendants entered their pleas, together with the statements of the court and counsel made at that time. This record is in words and figures as follows:

'And Be It Remembered That: On April 1, 1949, before the Honorable James H. Blackburn, sole Judge of said court the following proceedings were had in said cause to-wit:

'Comes now the defendants Sam E. Schmittler, Jack Jones and Cyril Broster and their attorney Jesse E. Wade and comes the State of Indiana by Francis E. Knowles, Prosecuting Attorney and proceedings were as follows:

'By the Prosecuting Attorney: The Arraignment of the First Count.

'Q. State your name? A. Sam E. Schmittler.

'Q. Do you plead guilty? A. Yes.

'Q. State your name? A. Jack Jones.

'Q. How do you plead? A. Guilty.

'Q. State your name? A. Cyril Broster.

'Q. Do you plead guilty? A. Yes.

[228 Ind. 457] 'Prosecuting Attorney Reads the Second Count:

'Q. Sam E. Schmittler how do you plead to this count? A. Guilty.

'Q. Jack Jones how do you plead? A. Guilty.

'Q. Gyril Broster how do you plead? A. Guilty.

Page 187

'By the Prosecuting Attorney: All of the defendants plead to both charges of burglary in the second degree and grand larceny.

'By the Court:

'Q. State your name? A. Sam E. Schmittler.

'Q. How old are you? A. Twenty one.

'Q. You are represented by an attorney, Mr. Jesse E. Wade? A. Yes, sir.

'Q. Are you entering this plea of guilty of your own free will and choice? A. Yes, sir.

'Q. You have not been over-persuaded to enter this? A. No, sir.

'Q. No threats of any kind used? A. No.

'Q. How old did you say you are? A. Twenty-one.

'Q. What is your name? A. Jack Jones.

'Q. You are charged in this affidavit for second degree burglary and grand larceny? A. Yes.

[228 Ind. 458] 'Q. You enter this plea of guilty with the advice and consent of your attorney? A. Yes.

'Q. No one has over-persuaded you to do it? A. No.

'Q. How old are you? A. Eighteen.

'Q. When were you eighteen? A. February 25th.

'Q. Your name is what? A. Cyril Broster.

'Q. How old are you? A. Nineteen.

'Q. You are represented by an attorney, Mr. Jesse E. Wade? A. Yes.

'Q. You are entering this plea of your own free will and choice? A. Yes.

'Q. Has anyone threatened you or persuaded you to enter this plea of guilty? A. No.

'Q. Have you ever been in trouble before? A. No.

'Q. You live in Illinois? A. Yes.

'Q. I will ask you Mr. Schmittler, have you ever been in trouble before? A. No.

'Q. This is your first time of being arrested? A. Yes, sir.

'Q. Mr. Jones have you ever been arrested before? A. No.

'Q. Not for any offense of any kind? A. No, sir.

'By Mr. Wade: This boy is an orphan and the other two boys are sons of widows and their mothers are here in court [228 Ind. 459] and they tell me that their children have never been in trouble before, they have been good boys and that there is a good job waiting for both of the boys with the prospect of a job for the other one if the court can see fit to suspend the sentence or parole them. If the court could see fit, it being their first offense, they were on a wildgoose chase through New Harmoney and it has been doen or arranged to be done, the money will be restored there will be no loss to him in this matter if the court could see fit to take it under advisement or suspend the sentence. They belong in Illinois, I don't know how it could be arranged one of the officers in Illinois offered to be a sponsor for one of the boys. This is their first offense, they have never been in trouble before, one of the boys is an orphan and the other two sons of widow women. They did it and there is no excuse for the fact they did do it but perhaps it would be a sore lesson to them.

'By the Court: Here is a plea of guilty to both charges.

'By Mr. Wade: It is really one case.

'By the Prosecuting Attorney: It is one affidavit in two counts. I will dismiss the second count for grand larceny. It is a second degree burglary case. I will dismiss the second count and if the court felt so it will be a...

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33 practice notes
  • State ex rel. McManamon v. Blackford Circuit Court, No. 28717
    • United States
    • Indiana Supreme Court of Indiana
    • December 7, 1950
    ...1948, 226 Ind. 496, 81 N.E.2d 530, 82 N.E.2d 407; Johns v. State, 1949, 227 Ind. 737, 89 N.E.2d 281; Schmittler v. State, Ind.1950, 93 N.E.2d 184. But in each of these cases the claim was seasonably made so that the state would not be prejudiced by reason of death or absence of witnesses, l......
  • Randolph v. State, No. 28987
    • United States
    • Indiana Supreme Court of Indiana
    • December 7, 1954
    ...State, 1920, 189 Ind. 69, 84, 85, 125 N.E. 773, quoted with approval by Emmert, J., in his excellent dissent in Schmittler v. State, 1950, 228 Ind. 450, at page 473, 93 N.E.2d 184 at page 193. In this dissent Judge Emmert also quoted with approval from Chief Justice Stone in Ex [234 Ind. 75......
  • Conley v. State, No. 671S183
    • United States
    • Indiana Supreme Court of Indiana
    • July 13, 1972
    ...of the attorney's [259 Ind. 34] testimony. In the setting of this case, we feel the following statement from Schmittler v. State (1950), 228 Ind. 450, 93 N.E.2d 184, is most It will be noted that appellant, upon whom rested the burden of proof, did not produce his attorney's affidavit or te......
  • Blackburn v. State, No. 370S43
    • United States
    • Indiana Supreme Court of Indiana
    • January 24, 1973
    ...State (1971), Ind., 274 N.E.2d 231, 237. See also, Shuemak v. State (1970), 254 Ind. 117, 258 N.E.2d 158, 160; Schmittler v. State (1950), 228 Ind. 450, 467, 93 N.E.2d 184, The mere fact that another attorney might have conducted the defense differently is not sufficient to require a revers......
  • Request a trial to view additional results
33 cases
  • State ex rel. McManamon v. Blackford Circuit Court, No. 28717
    • United States
    • Indiana Supreme Court of Indiana
    • December 7, 1950
    ...1948, 226 Ind. 496, 81 N.E.2d 530, 82 N.E.2d 407; Johns v. State, 1949, 227 Ind. 737, 89 N.E.2d 281; Schmittler v. State, Ind.1950, 93 N.E.2d 184. But in each of these cases the claim was seasonably made so that the state would not be prejudiced by reason of death or absence of witnesses, l......
  • Randolph v. State, No. 28987
    • United States
    • Indiana Supreme Court of Indiana
    • December 7, 1954
    ...State, 1920, 189 Ind. 69, 84, 85, 125 N.E. 773, quoted with approval by Emmert, J., in his excellent dissent in Schmittler v. State, 1950, 228 Ind. 450, at page 473, 93 N.E.2d 184 at page 193. In this dissent Judge Emmert also quoted with approval from Chief Justice Stone in Ex [234 Ind. 75......
  • Conley v. State, No. 671S183
    • United States
    • Indiana Supreme Court of Indiana
    • July 13, 1972
    ...of the attorney's [259 Ind. 34] testimony. In the setting of this case, we feel the following statement from Schmittler v. State (1950), 228 Ind. 450, 93 N.E.2d 184, is most It will be noted that appellant, upon whom rested the burden of proof, did not produce his attorney's affidavit or te......
  • Blackburn v. State, No. 370S43
    • United States
    • Indiana Supreme Court of Indiana
    • January 24, 1973
    ...State (1971), Ind., 274 N.E.2d 231, 237. See also, Shuemak v. State (1970), 254 Ind. 117, 258 N.E.2d 158, 160; Schmittler v. State (1950), 228 Ind. 450, 467, 93 N.E.2d 184, The mere fact that another attorney might have conducted the defense differently is not sufficient to require a revers......
  • Request a trial to view additional results

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