State ex rel. Lake v. Bain, 28400.

CourtSupreme Court of Indiana
Citation225 Ind. 505,76 N.E.2d 679
Docket NumberNo. 28400.,28400.
PartiesSTATE ex rel. LAKE v. BAIN.
Decision Date03 January 1948

225 Ind. 505
76 N.E.2d 679

STATE ex rel. LAKE

No. 28400.

Supreme Court of Indiana.

Jan. 3, 1948.

Original action by the State, on the relation of David Lake, against William D. Bain, as Judge of the Marion Criminal Court No. 1, for a mandate to compel respondent to appoint an attorney to perfect and prosecute an appeal for relator and to furnish him with a transcript of the proceedings on the cause in which he was convicted and sentenced to prison.

Petition dismissed.

[76 N.E.2d 679]

David Lake, pro se.

No apparance for appellee.

O'MALLEY, Justice.

The relator in this action has requested that we mandate Judge William D. Bain of Criminal Court No. 1, Marion County, to

[76 N.E.2d 680]

appoint an attorney to perfect and prosecute an appeal for him, and also to turnish him with a transcript of the proceedings in the cause in which he was convicted and sentenced to prison.

This relator was convicted of the crime of robbery on July 27, 1944, by a jury in Criminal Court No. 1, Marion County, Indiana. Sentence was pronounced on the same day and the relator commenced to serve a term of not less than 10 nor more than 25 years in the Indiana State Prison. About two years after his conviction he filed an original action in this court requesting that the lower court be ordered to permit him to file a motion for a new trial. This request was denied on May 9, 1947, but subsequently on June 3, 1947, the relator filed his motion for a new trial in the lower court. That court denied the motion thus filed on June 3, 1947. The relator then requested that he be permitted to appeal as a poor person from the overruling of the motion for a new trial and that a transcript of the proceedings in the original case be furnished without cost to relator and further that counsel be appointed at public expense to conduct such appeal.

The motion for a new trial which was filed in the matter below was in the form of the statutory motion for which provision is made in § 9-1903, Burns' 1942 Replacement. This statute fixes the time within which the motion may be filed and any such motion filed at a time more than 30 days subsequent to the verdict does not come within the time fixed and may be stricken from the files.

Under the common law no motion for a new trial was permitted. Ward v. State, 1909, 171 Ind. 565, 86 N.E. 994. This particular right is a creature of the legislature and must be exercised in conformity with the statute. Webster v. State, 1935, 209 Ind. 274, 198 N.E. 781.

We do not hold that a new trial may not be gained or granted in any other way, but certainly the statutory motion is limited as to reasons and time by the terms thereof. There is authority for holding that under proper circumstances, a judgment may be set aside so that a motion for a new trial may be filed. Indianapolis Life Ins. Co. v. Lundquist, 1944, 22 Ind. 359, 53 N.E.2d 338. However, no showing has been made in this action that would place it in the category to which reference is made in the above case.

In this particular instance the motion was filed with the clerk of the Marion County Criminal Court and at a later date it was denied. We do not believe that the fact that this motion found its way into the record gave any new or added right to the relator, since its filing was unauthorized at the time it was filed. Ward v. State, supra.

In his petition the relator requests that we mandate the judge of the court wherein relator was tried and convicted to appoint counsel and order a transcript. We have a public defender whose duties are set by statute. Under that statute, § 13-1402, Burns' 1942 Replacement (Supp.), the public defender is to represent all persons in prison, whose time for appeal has expired, and who are unable to pay for such services. Ample provision has been made for securing transcripts and other records which are deemed necessary by the public defender. Of course, he represents only those who have been denied some right, or whose conviction does not seem to have been deserved when all facts are considered. In this matter the relator claims to have been wronged by perjured testimony. If there is merit to his claims, he is not denied the right to present the same, but the state has provided an attorney for him and the judge of the trial court has no duty to provide an attorney and we seriously doubt his right to do so at public expense. Any grievance that he may have, whether it relates to perjured testimony or to some other cause, must be first presented to the trial court in which the relator was convicted and cannot be presented to this court except on appeal.

There are other matters that could be discussed in this opinion but the reasons above set forth should be sufficient for our holding in this matter.

The petition of the relator is hereby ordered dismissed.

[76 N.E.2d 681]

EMMERT, Chief Justice (concurring).

The relator's verified petition for a writ of mandate to require the Marion Criminal Court No. 1 to furnish the defendant with a transcript in Cause No. 690 entitled The State of Indiana v. David Lake, and to appoint competent counsel to represent relator on appeal, is insufficient in that no ‘certified copies of pleadings, orders and entries pertaining to the subject matter’ are set out in the petition and made exhibits thereto as required by Rule 2-35 of this court. State ex rel. Talkington v. Hoffman, Judge, Ind.Sup., 1947, 76 N.E.2d 252.

However, considering petitions and statements under oath as admissions, it also appears no cause for the relief prayed has been alleged.

Relator admits that on July 27, 1944 he was found guilty by a jury of the crime of robbery, and on said date the court entered judgment sentencing him to the Indiana State Prison for a term not less than ten years nor more than twenty-five years. More than two years after the judgment, relator offered to file a motion for a new trial which alleged, among other things, ‘newly discovered evidence which the defendant could not, with reasonable diligence, have discovered and produced at the trial or within thirty days subsequent to the return of the verdict.’ The newly discovered evidence was an alleged statement by Richard English, the principal, made on the 11th day of October, 1946, that his testimony given at the trial implicating relator as an accessory was false. On June 3, 1947 the motion for a new trial was permitted to be filed by the court, and it was subsequently overruled on June 24, 1947.

It is a denial of due process of law for a defendant to be convicted upon perjured testimony when that fact is known to the state. Mooney v. Holohan, 1935, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406;White v. Ragen, 1945, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348;Pyle v. State of Kansas, 1942, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214.

Even if the prosecution had no knowledge of the perjured testimony, the result is just as evil to the prisoner and equally odious to any civilized and enlightened sense of justice. When a conviction rests upon perjured evidence the judgment will be reversed. Partlow v. State, 1924, 195 Ind. 164, 144 N.E. 661, 30 A.L.R. 1414;Davis v. State, 1928, 200 Ind. 88, 161 N.E. 375.1

In Partlow v. State, 1924, 195 Ind. 164, 144 N.E. 661, 30 A.L.R. 1414, this court directed the trial court to receive and act upon a motion for a new trial after the statutory time had elapsed when two of the prosecuting witnesses later made verified confessions that testimony implicating the defendant had been perjured. On November 20, 1919 the defendant was found guilty by a jury, and eight days later the defendant's motion for a new trial was overruled by the trial court. The case was appealed to this court2 on October 14, 1920, but thereafter the prosecuting witness Bernaurer, December 25, 1920, executed verified confession exonerating the defendant, and on August 25, 1923 the prosecuting witness Sterrett executed a verified confession also alleging the innocence of the defendant. Defendant Partlow then brought an original action in this court to direct the trial court to file a motion for a new trial. This court held that without the testimony of Bernaurer and Sterrett there was grave doubt that the verdict of guilty would have been rendered, and under such circumstances a motion for a new trial for newly discovered evidence was proper. This court held that if the testimony was false and perjured, ‘Such false and perjured evidence was a fraud upon the court

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and jury, which tinged the verdict and judgment.’ Page 172 of...

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