State ex rel. White v. Hilgemann

• Decision Date: 27 May 1941
• Docket Number: 27548.
• Citation: 34 N.E.2d 129,218 Ind. 572
• Parties: STATE ex rel. WHITE v. HILGEMANN, Judge.
• Court: Indiana Supreme Court

34 N.E.2d 129

218 Ind. 572

STATE ex rel. WHITE v. HILGEMANN, Judge.

No. 27548.

Supreme Court of Indiana

May 27, 1941

Clyde White, per se.

George N. Beamer, Atty. Gen., and Norman E. Duke, Deputy Atty. Gen for appellee.

FANSLER Chief Justice.

The relator was convicted of murder in the first degree and sentenced to life imprisonment in the Allen Circuit Court. He was represented at the trial by an attorney of his own choosing, and whom, it is presumed, he had means to pay for the service rendered. A motion for a new trial was overruled. The defendant desires to appeal to this court, assigning error in the trial. The attorney who had represented him declined to undertake the preparation of the record and to prosecute the appeal upon the ground that, because of lack of training and experience in appellate procedure, he believed himself incapable. At this point it was made to appear to the satisfaction of the court that the defendant was a poor person without means with which to procure a competent attorney or proceed with his defense. The learned trial judge indicated his willingness to order the preparation of a bill of exceptions and a transcript of the record, but, unable to find authority for the appointment of counsel to perfect the appeal at the expense of the county, declined the appointment of counsel. This proceeding seeks an order mandating the trial court to appoint counsel for the relator to perfect and present an appeal from the judgment against him to this court.

That the relator is a poor person without means of employing counsel is not questioned, and his right to have counsel previous to and at the trial is not questioned. The records of this court will disclose many cases in which counsel appointed to defend before the beginning of the trial has continued serving to perfect and present an appeal, and that would have been the case here, no doubt, except for counsel's lack of confidence in his adequacy.

We have held that attorneys appointed by the court to defend poor persons in criminal actions cannot be required to serve without compensation; that the Constitution requires that such persons shall have counsel; and that courts have inherent power to incur the expense and order compensation for counsel paid out of county funds. Knox County Council v. State ex rel. McCormick, Ind.Sup., 1940, 29 N.E.2d 405, 130 A.L.R. 1427. The case cited and those relied upon in the opinion involve the appointment of an attorney to represent the defendant before and during the trial. The right of a defendant in a criminal case to have counsel to perfect and prosecute an appeal to this court seems not to have been expressly decided. A determination of the question involves a consideration of the provisions of the Constitution of Indiana and of the due process clause of the Federal Constitution, Amend. 14.

In Warren v. Indiana Telephone Co., Ind.Sup., 1940, 26 N.E.2d 399, it was concluded, upon a careful consideration of the authorities, that the Constitution of Indiana guarantees an absolute right to a review by this court; that the Legislature has the right to regulate and provide procedure for obtaining a review, but not to curtail or deny the right. Review has been made available by the statutory appeal, but the right to review is available in all cases and, where the statutory appeal is inadequate, the writ of error or other appropriate means may be resorted to.

The United States Supreme Court has repeatedly declared that due process guaranteed by the Federal Constitution requires a trial in a state court, conforming to the fundamental conceptions of justice which lie at the base of our civil and political institutions, and that if the state supplies no corrective process the federal courts will intervene to protect the life or liberty of the citizen from a judgment where the trial is not conducted according to such standards. Mooney v. Holohan, Warden, 1935, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Frank v. Mangum Sheriff, 1915, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969; Moore et al. v. Dempsey, Keeper, etc., 1923, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. We must construe these cases to mean that, where the state does not provide corrective judicial process, the federal courts will review upon the assertion of substantial error involving due process. This rule was recognized in State ex rel. Kunkel et al. v. Circuit Court of LaPorte County, 1936, 209 Ind. 682, 685, 200 N.E. 614, 615, and it is pointed out that 'In this state a motion for a new trial or petition for writ of error coram nobis are available as a remedy in such cases, with the right of review by this court for error.' But the mere naked right to a review for error and to have counsel is not sufficient. The right must be made available for the purposes for which it is granted. The right to a review is but a hollow grant to one who cannot...