State v. Marshall, 28868

• Decision Date: 10 April 1952
• Docket Number: No. 28868,28868
• Citation: 230 Ind. 512,104 N.E.2d 926
• Parties: STATE v. MARSHALL.
• Court: Indiana Supreme Court

Page 926

104 N.E.2d 926

230 Ind. 512

STATE v. MARSHALL.

No. 28868.

Supreme Court of Indiana.

April 10, 1952.

J. Emmett McManamon, Atty. Gen., John Ready O'Connor, Deputy Atty. Gen., John Daily, Deputy Pros. Atty., Indianapolis, for appellant.

No briefs filed for appellee.

DRAPER, Judge.

On the 30th day of January, 1946, in the Criminal Court of Marion County, a verdict was returned finding the appellee Marshall guilty of robbery, and he was duly sentenced to imprisonment for not less than ten nor more than twenty-five years. His motion for new trial was overruled on June 26, 1946.

On October 27, 1951, Marshall filed a pleading which has been treated throughout as a petition for writ of error coram nobis. The state filed a special appearance and plea in abatement which was assigned to be heard on December 7, 1951. On that day the plea in abatement was 'dismissed' by the court, and the court announced that it would at once proceed to trial on the merits of the petition.

Thereupon the state advised the court that it wished to prepare and file a demurrer to the petition for the purpose of questioning the legal sufficiency thereof. The state further objected to the hearing of the matter on its merits at that time because it had no answer on file. The state informed the court that it wished to prepare and file an answer in the event its demurrer was overruled. The state further objected to the immediate disposition of the matter on its merits for the reason that it had had no opportunity to allege affirmative defenses by way of answer or to subpoena witnesses for the purpose of establishing any defense. The objections were overruled. The court proceeded to hear the petition on its merits; granted the appellee a new trial; and fixed his bond at $1,000. The state refused to participate in the hearing on the petition.

The state here complains that the trial court erred in denying to it a reasonable opportunity to plead in opposition to said petition, and to produce witnesses for a hearing on the merits.

At the time appellant filed its plea in abatement the appellee had failed to serve notice upon the attorney general of the filing of his petition as required by Burns' 1951 Repl. § 49-1937. The plea in abatement was not without merit when filed, for we have held that under said section a copy of the petition for writ of error coram nobis must be served upon the attorney general, and until such copy is served no action has been commenced. State ex rel. Hunter v. Murray, 1950, 228 Ind. 93, 89 N.E.2d 539. Only at the time of the hearing on the plea in abatement did the appellee make proof that he had caused a notice to be served on the attorney general. Such notice was not served until December 1, 1951.

A petition for writ of error coram nobis is in the nature of a civil proceeding. State ex rel. Cutsinger v. Spencer, Judge, 1941, 219 Ind. 148, 41 N.E.2d 601. We have heretofore recognized the demurrer as a proper pleading to test the legal sufficiency of such a petition. State ex rel. Thompson v. Marsh, 1946, 224 Ind. 14, 64 N.E.2d 293; State ex rel. Singer v. Nixon, 1951, 229 Ind. 276, 97 N.E.2d 865. The state may join an issue of fact by controverting the allegations in the petition or motion and such issue should be tried as other issues of fact are tried, by the introduction and...