State ex rel. Barnes v. Howard

• Decision Date: 20 February 1946
• Docket Number: 28146.
• Citation: 65 N.E.2d 55,224 Ind. 107
• Parties: STATE ex rel. BARNES v. HOWARD.
• Court: Indiana Supreme Court

65 N.E.2d 55

224 Ind. 107

STATE ex rel. BARNES v. HOWARD.

No. 28146.

Supreme Court of Indiana

February 20, 1946

Appeal from LaPorte Circuit Court; Lee L. Osborn Judge.

Harry S. Barnes, pro se.

James A. Emmert, Atty. Gen., Frank E. Coughlin, First Asst. Atty Gen., and Merl M. Wall, Dep. Atty. Gen., for appellee.

O'MALLEY Judge.

This is an appeal from the LaPorte Circuit Court wherein the relator was denied the issuance of a writ of habeas corpus.

The petition filed below set forth that the relator was, on the 12th day of November, 1943, sentenced for an indeterminate term of from two to fourteen years in the Indiana State Prison; that the sentence was pronounced by the DeKalb Circuit Court on a conviction of forgery; and that no appeal was taken from the judgment of conviction so rendered. It further alleged that on January 6, 1945, this relator filed a petition for a writ of error coram nobis in the DeKalb Circuit Court and on the 11th day of January 1945, trial was had and at its conclusion the court entered judgment denying the writ. It is further alleged that this relator prayed an appeal from the judgment denying the writ on the 10th day of February, 1945; that he thereupon requested that the clerk of the circuit court prepare a transcript of the record in the coram nobis proceeding and file the same with the Clerk of the Supreme Court of Indiana; that a transcript was made and sent to the Clerk of the Supreme Court; that the clerk thereupon wrote to relator and stated that the transcript was not in proper form; that this relator requested that it be sent to him, but that the clerk sent it to the 'Public Defender' of the State of Indiana; and that the time for appeal passed before the transcript reached this relator.

It is claimed that because of the matters above alleged the LaPorte Circuit Court had jurisdiction of the petition for habeas corpus and that the interference with the right of appeal made his imprisonment unlawful.

Habeas corpus is a statutory proceeding in the State of Indiana. §§ 3-1901 to 3-1925, Burns' 1933. In §§ 3-1918 of the statute it is plainly stated that:

'No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following:

'First * * *.

'Second. Upon any process issued on any final judgment of a court of competent jurisdiction.

'Third * * *.

'Fourth * * *.'

In his petition the relator alleged that he was in prison on process which issued out of the DeKalb Circuit Court. That court is one of competent jurisdiction and legally authorized to try crimes and misdemeanors. The relator asserts here that because he alleged that a transcript was not filed by the clerk of this court; because the clerk sent the transcript to the Public Defender; because it did not come to his hand until the time to appeal had passed, that the right to restrain him of his freedom ceased.

The coram nobis proceeding was not a continuation of the criminal cause in which he was convicted and sentenced. State ex rel. v. Gentry, Ind.Sup.1945, 62 N.E.2d 860. It was an attack upon the judgment of conviction and governed by different rules of law. State ex rel. v. Gentry, supra. In such proceeding the State need not provide an attorney and records or transcripts at public expense. State ex rel v. Criminal Court of Lake County, 1942, 220 Ind. 4, 40 N.E.2d 971. The burden of going forward and the burden of proof were on the petitioner, relator herein. State ex rel....