State ex rel. Cutsinger v. Spencer
| Decision Date | 07 November 1941 |
| Docket Number | 27634. |
| Citation | 41 N.E.2d 601,219 Ind. 148 |
| Parties | STATE ex rel. CUTSINGER v. SPENCER, Judge. |
| Court | Indiana Supreme Court |
As Corrected April 14, 1942.
James Cutsinger, pro se.
This is an original action seeking a writ mandating the respondent to order prepared and furnished to the relator 'a duly certified copy of the affidavit, Indictment, verdict of the Jury, judgment of sentence imposed, and all evidence and testimony introduced before the trial Jury, etc.,' in a case in which the relator was convicted of murder. The date of the judgment of conviction is not disclosed, but it appears that the relator is confined in the Indiana State Prison at Michigan City.
The petition discloses that the relator desires to use the record in connection with a petition for a writ of error coram nobis which he intends to file in the Vanderburgh Circuit Court seeking to have the judgment against him vacated. He relies upon State ex rel. Pappas v. Baker, Judge, 1935, 209 Ind. 25, 197 N.E. 912, as authority supporting his right to have the transcript of the record furnished him. But that case merely decides that section 4-3511, Burns' Ind St.1933, section 1300, Baldwin's Ind.St.1934, requires that the trial court, upon a proper showing, shall cause a longhand manuscript or transcript of the evidence to be furnished to a defendant, at the expense of the county, to be used upon an appeal to this court for a review of the proceedings in the trial court for error. There is nothing in the statute which provides for or requires the furnishing of a transcript of the record or the evidence after final judgment and after the time for an appeal for review for error has passed.
In State ex rel. White v. Hilgemann, Judge Ind.Sup.1941, 34 N.E.2d 129, we held that under section 13 of article 1 of the Constitution of Indiana the court is required to furnish a pauper defendant with a record which may be used to support an assignment of error on appeal, and furnish him with counsel to perfect an appeal, all at the expense of the county. This was upon the theory that due process requires a fair trial, free from prejudicial error, and the right to a review to correct errors.
But after there is a final judgment unappealed from, and the time for asserting error has passed, the criminal prosecution in which the accused is entitled to be heard by himself and counsel is terminated, and the constitutional provision is no longer operative. "The writ of coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication, made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which, without any fault or negligence of the party, was not presented to the court." Sanders v. State, 1882, 85 Ind. 318, 326, 44 Am.Rep. 29. It has been said that the petition is in the nature of a motion for a new trial, but it seems that the only similarity is that, like a motion for a new trial, the result sought is a new trial, and that, in considering the evidence brought forward to sustain the motion, the court will take cognizance of and consider the entire record of the original trial. Until a person accused of crime has been convicted upon a trial free from error which prejudices his substantial rights, it may be said that he is presumed to be innocent and continues to be merely 'the accused' person referred to in section 13 of article 1 of the Constitution. After he has been convicted, and the judgment has become final, and it has been determined upon appeal that there was no prejudicial error in the trial, or when the time is past and the right to a review for error has been waived, the defendant is no longer 'the accused,' and the 'criminal prosecution (s)' is ended. He then stands convicted, and must be presumed to be guilty unless and until he procures the judgment to be vacated. In the prosecution the burden is upon the state to prove that he is guilty of the charge, and the Constitution requires that he be afforded ample means with which to defend himself. After the judgment becomes final, the burden is upon the judgment defendant to establish facts which justify setting the judgment aside.
'The proceeding under a writ of coram nobis or coram vobis is regarded as civil in its nature, and sometimes as part of the proceedings in the case to which it refers, and sometimes as in the nature of a new adversary suit.' 31 Am.Jur. § 799 p. 322. The statement that it is sometimes a part of the proceedings in the case to which it refers seems to be made upon authority of Berry v. State, 1930, 202 Ind. 294, 165 N.E. 61, 173 N.E. 705, 72 A.L.R. 1177. In that case the statement was made upon authority of Partlow v. State, 1922, 191 Ind. 657, 658, 134 N.E. 483,...
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