Souerdike v. State, 28863

Citation231 Ind. 204,108 N.E.2d 136
Decision Date14 October 1952
Docket NumberNo. 28863,28863
CourtSupreme Court of Indiana

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...

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43 cases
  • Van Bibber v. Norris
    • United States
    • Court of Appeals of Indiana
    • June 3, 1980
    ...255 N.E.2d 822, 826. This case comes to us with the presumption that the trial court reached the correct result. Souerdike v. State, (1952) 231 Ind. 204, 108 N.E.2d 136, 137. We first address the bank's arguments concerning liability. Following that we will discuss Van Bibber's liability an......
  • Kroger Co. v. Haun, 2-576A189
    • United States
    • Court of Appeals of Indiana
    • August 31, 1978
    ...extent, Kroger is therefore appealing a negative judgment and may only succeed if the judgment is contrary to law. Souerdike v. State (1952) 231 Ind. 204, 108 N.E.2d 136; Baker v. Fisher (3d Dist. 1972) 153 Ind.App. 581, 288 N.E.2d Incurred risk and contributory negligence are generally que......
  • Hillman v. State, 29174
    • United States
    • Supreme Court of Indiana
    • December 14, 1954
    ...v. Carroll), 1952, 231 Ind. 126, 136, 106 N.E.2d 230; Sells v. State, 1952, 231 Ind. 137, 142, 107 N.E.2d 264; Souerdike v. State, 1952, 231 Ind. 204, 206, 108 N.E.2d 136. He failed to sustain that burden. Second: If the evidence was such as should have compelled a finding and judgment for ......
  • Gwaltney Drilling, Inc. v. McKee
    • United States
    • Court of Appeals of Indiana
    • June 30, 1970
    ...presumption that a correct result was reached and the burden is upon appellant here to overcome that presumption. Souerdike v. State, 1952, 231 Ind. 204, 206, 108 N.E.2d 136. * * * In determining that question, however, 'we may consider only the evidence most favorable to the successful par......
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