Schuble v. Youngblood

• Decision Date: 12 June 1947
• Docket Number: 28320.
• Citation: 73 N.E.2d 478,225 Ind. 169
• Parties: SCHUBLE v. YOUNGBLOOD, Circuit Judge.
• Court: Indiana Supreme Court

73 N.E.2d 478

225 Ind. 169

SCHUBLE v. YOUNGBLOOD, Circuit Judge.

No. 28320.

Supreme Court of Indiana

June 12, 1947

William J. Schuble, pro se.

No appearance for respondent.

YOUNG Judge.

It appears that petitioner herein was tried and convicted of a criminal offense in the Vanderburgh Circuit Court. He was a poor person and an attorney had been appointed to defend him. After his conviction he filed a written motion asking the respondent Judge to substitute an attorney, whom he named, to represent him in an appeal instead of the attorney originally appointed. Respondent declined to do so and petitioner instituted this original action in this court asking that this court mandate the respondent to grant his motion for a new attorney to represent him upon appeal.

The petition in this court is verified and alleges that it is his 'honest belief that' the attorney (naming him) 'appointed by the Vanderburgh Circuit Court is incompetent negligent and indifferent and that a proper appeal will not be made unless petitioner's motion for substitution of attorney is granted.' No facts upon which this conclusion is based are set out.

The written motion filed by petitioner in trial court, asking for a new attorney was not verified. A copy of it is attached to the petition filed here as an exhibit. In that he asked that a named attorney of his selection be appointed in the place of the attorney originally appointed by the court He alleged that this original attorney is without the skill and knowledge necessary to represent him; that he is incompetent negligent and indifferent; that 'defendant is convinced that' the said attorney (naming him) 'regards his position as that of a guard to prevent defendant, who is illegally restrained of his liberties to take legal steps to obtain his release,' and that 'defendant is convinced that' said attorney, (naming him) 'is not only incompetent, but is also biased and prejudiced against the basic idea of just and honest enforcement of the law,' and that defendant believes that the said attorney 'is motivated by malice, and not by an alert, profound and sincere American concept of good law enforcement'; that he 'objects to said attorney appearing in this cause purporting to represent defendant for the further reason that the State of Indiana cannot ethically control both sides of this proceeding by forcing said attorney or his services upon any person who objects to his appearance.' These allegations are typical of all the allegations contained in the petition.

Of course, it is the duty of the court to see that counsel is assigned who has the ability and experience fairly to represent the defendant and to protect his rights. 14 Am.Jur., p. 888. The defendant, however, is not entitled to choose the attorney to be appointed to serve in his behalf. The selection of such attorney is entirely within the discretion of the court. Lloyd v. State, 1934, 206 Ind. 359, 364, 189 N.E. 406; Keyes v. State, 1890, 22 Ind. 527, 529, 23 N.E. 1097; Burton v. State, 1881, 75 Ind. 477, 479, 480; 23 C.J.S., Criminal Law, § 982, page 325; 14 Am.Jur. 888. The rule is stated in Corpus Juris Secundum in the following language:

'The constitutional guaranty to be represented by counsel does not confer the right upon accused to compel the court to assign him such counsel as he may choose, but the selection of counsel is in the discretion of the court. * * *' 23 C.J.S., Criminal Law, § 982, page 325.

In Lloyd v. State, supra, the following language appears at pages 363, 364 of 206 Ind., at page 408 of 189 N.E.:

'* * * Whether an accused shall be permitted to defend as a poor person, and, if permitted to do so, the number of counsel assigned such accused, are questions for the determination of the trial court in the exercise of a sound discretion which will not be interfered with unless it clearly appears that there has been an abuse of discretion to the prejudice of the accused. Keyes v. State, 1890, 122 Ind. 527, 23 N.E 1097. ...