Souerdike v. State, 28863

• Decision Date: 14 October 1952
• Docket Number: No. 28863,28863
• Citation: 231 Ind. 204,108 N.E.2d 136
• Parties: SOUERDIKE v. STATE.
• Court: Indiana Supreme Court

Page 136

108 N.E.2d 136

231 Ind. 204

SOUERDIKE v. STATE.

No. 28863.

Supreme Court of Indiana.

Oct. 14, 1952.

James C. Cooper, Public Defender, Harold P. Fiely, Public Defender, Rushville, Richard Givan, Asst. Public Defender, Camby, for appellant.

J. Emmett McManamon, Atty. Gen., William T. McClain, John Ready O'Connor, Deputy Attys. Gen., for appellee.

DRAPER, Judge.

On the night of December 5, 1936, one Charles Basch was shot and grievously wounded during an attempt to rob him in his own home. The appellant was arrested there. On January 5, 1937, an affidavit was filed which charged appellant with the commission of the crime. On January 14, 1937, he was sentenced to imprisonment for life upon his plea of guilty. Two accomplices were later apprehended and convicted.

In July 1951 this petition for writ of error coram nobis was filed. By it the appellant seeks to withdraw his plea of guilty so that a plea of not guilty can be entered and a trial of the criminal case had. An issue of fact was joined and the appellant was returned to Dubois County for the trial of that issue.

The appellant bases his right to relief upon the assertions that he was held in jail incommunicado for thirty days; and that he entered his plea of guilty without benefit of counsel, without being advised of his constitutional rights, and because he was promised an early release from prison if he would enter such a plea.

By appellant's own admissions it appears that he was visited in the county jail several times by his wife and children during the time he is supposed to have been held incommunicado. The evidence most favorable to the appellee discloses that the appellant had been fully advised of his constitutional rights before the plea was accepted, that he refused the assistance of counsel beyond what assistance he actually received, and that his claim of promises of early release from prison were unfounded.

The record thus presents a case of conflicting evidence which has been heard and considered by the trial court. This court will not weigh conflicting evidence. State v. Lindsey, 1952, Ind., 106 N.E.2d 230; Sells v. State, 1952, Ind. 107 N.E.2d 264; Sessler v. State, 1944, 222 Ind. 608, 56 N.E.2d 851; Garrett v. State 1939, 216 Ind. 52, 22 N.E.2d 981. The case comes to us with the presumption that the correct result was reached. The burden is upon appellant to overthrow that presumption. Sells v. State, supra; Garrett v. State, supra. A coram nobis proceeding is in the nature of a civil action. State ex rel. Meyer v. Youngblood, 1943, 221 Ind. 408, 48 N.E.2d 55; State ex rel. Emmert v. Gentry, 1945, 223 Ind. 535, 62 N.E.2d 860, 161 A.L.R. 532. The appellant had the burden of proof. He occupies the position of an unsuccessful moving party. The decision as to...