Shipley v. State
| Decision Date | 09 June 1936 |
| Docket Number | 26653. |
| Citation | 2 N.E.2d 389,210 Ind. 253 |
| Parties | SHIPLEY v. STATE. |
| Court | Indiana Supreme Court |
Riley Shipley was convicted of raping a female child under the age of 16 years, and he filed a petition for a writ of error coram nobis. A demurrer to the petition was sustained, and defendant appeals.
Affirmed.
Appeal from Monroe Circuit Court; Donald A. Rogers, Judge.
James A. Collins and Jessie Levy, both of Indianapolis, for appellant.
Philip Lutz, Atty. Gen., and Henry R. Wilson, Jr., Asst. Atty. Gen for the State.
It appears from the record that on the 6th day of September 1934, an approved affidavit was filed by the prosecuting attorney charging the appellant, defendant below, with rape upon Vernetta Alltop, a female child under the age of 16 years of age, to wit, of the age of 15 years; that on the 8th day of September appellant was arraigned and pleaded not guilty and the case was set for trial on October 3, 1934. On said date the trial was had before a jury and a finding of guilty. Judgment was rendered upon the verdict and the appellant was sentenced to the Indiana State Prison. The defendant was represented by an attorney at all stages of the proceedings. No motion for a new trial was filed.
On August 26, 1935, the appellant by his attorney filed notice for permission to file a petition for a writ of error coram nobis on September 13, 1935. Permission was given by the court to file said petition and the same was filed.
The petition is quite lengthy, and we will only give the material allegations thereof. It is alleged that the verdict was contrary to law and not sustained by sufficient evidence; that the testimony of the state's witnesses, Mary Alltop, mother of the said Vernetta Alltop, and Vernetta Alltop was false and untrue; that the appellant was confined in the Monroe county jail from August 18, 1934, to October 3, 1934, and had no opportunity of learning any facts or circumstances upon which the prosecution was based; that during the months of February and March, 1934, he was frequently in the company of Mary Alltop, and on numerous occasions had had sexual intercourse with her; that he was taken by surprise when he was arrested and charged with rape upon Vernetta Alltop; that the testimony of Mary and Vernetta Alltop was a complete surprise to the appellant, and he had no opportunity to refute said testimony except by his denial upon the witness stand.
The appellant further alleges that he was ignorant of his rights and that he cannot read or write, and did not know the exact charge against him except as explained by his attorney; that the defendant could not furnish the information necessary for the purpose of filing a motion for a new trial. The appellant, in support of his petition for a writ of error coram nobis in order to show that the testimony of the two named witnesses was false, presents twelve or more affidavits of different persons tending to show that, if the affiants were telling the truth, the evidence of Mary and Vernetta Alltop could not in all respects be true.
The state filed a demurrer to the petition which was sustained by the court, and the appellant has assigned as error that the court erred in sustaining the demurrer to the petition for a writ of error coram nobis.
The evidence given by the appellant and Mary and Vernetta Alltop at the original trial is set out in full and it presents a most sordid story. It shows that at different times and places the mother, daughter, and appellant all slept together in one bed, with the daughter on one said of the appellant and the mother on the other; that the appellant stated he had had sexual intercourse with Mary Alltop a thousand times, but he denied ever having intercourse with the daughter; the evidence of the appellant further shows that all three of them lived on the river north of Martinsville for several weeks and slept on blankets placed upon hay; the appellant stated that the mother was jealous of her daughter, which indicates that he was paying some attention to the daughter. The evidence further shows at one time they lived in Indianapolis, all three occupying one bed, and in the manner above described.
The daughter, Vernetta Alltop, testified that she and the appellant in the summer of 1934 hitchhiked to Wisconsin and were gone for about 3 months; that during this time he had intercourse with her frequently. The appellant denied this testimony, and the statements of affiants in some of the affidavits filed tended to show that the appellant was in Indianapolis and other places during this time, and therefore could not have been in Wisconsin. It is shown, however, in the affidavit of Elizabeth Wilkerson and Clifford Baker, that they went to...
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United States v. Moore
...fact affecting the validity and regularity of the proceedings. 24 C.J.S., Criminal Law, § 1606, and cases there cited. In Shipley v. State, 210 Ind. 253, 2 N.E.2d 389, the court said that before a writ of coram nobis will be granted, it must be clearly apparent that the petitioner has a val......
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Bradburn v. State, 970S213
...impeach is not such as will require the granting of a new trial. Mavrick v. State (1965), 247 Ind. 77, 210 N.E.2d 426; Shipley v. State (1936), 210 Ind. 253, 2 N.E.2d 389. Further, in the absence of a clear indication that the new evidence would probably effect a change in the result of the......
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Linkenhelt v. State, 27990.
...with their sworn testimony at the trial. Mosier v. State, 1942, 219 Ind. 669, 40 N.E.2d 698; Hicks v. State, supra; Shipley v. State, 1936, 210 Ind. 253, 2 N.E.2d 389. Judgment ...