Swain v. State, No. 27134.

Docket NºNo. 27134.
Citation18 N.E.2d 921, 215 Ind. 259
Case DateFebruary 09, 1939
CourtSupreme Court of Indiana

215 Ind. 259
18 N.E.2d 921

SWAIN
v.
STATE.

No. 27134.

Supreme Court of Indiana.

Feb. 9, 1939.


James Reed Swain was convicted of first-degree murder, and he filed petition for writ of error coram nobis. From a judgment denying the petition, he appeals.

Affirmed.

[18 N.E.2d 921]

Appeal from Vanderburgh Circuit Court; John W. Spencer, judge.
R. L. Bailey, of Indianapolis, Tenola E. Graves, of Michigan City, and Rudolph D. O'Hara, of Evansville, for appellant.

Omer Stokes Jackson, Atty. Gen., and Rexell A. Boyd, Deputy Atty. Gen., for the State.


SHAKE, Judge.

Appellant was indicted, tried, and convicted of murder in the first degree while

[18 N.E.2d 922]

in the perpetration of a robbery, and sentenced to death. He prosecuted an appeal to this court, which affirmed the case on June 7, 1938. Swain v. State, 15 N.E.2d 381. Thereafter, he filed in the court below a petition for a writ of error coram nobis. The state answered by general denial; evidence was heard; and the petition was denied. The appellant has again appealed to this court.

The verified petition for a writ of error coram nobis recites that on or about November 27, 1937, appellant was arrested by police officers for the killing of one Christ Bredenkamp on the night of November 23rd of that year; that he was confined in jail and not permitted to see anyone until December 6th, upon which day he was arraigned and entered a plea of not guilty. Appellant says that he is a negro and that at the time he entered his plea he was 18 years of age and without education; that he had been unemployed for a long time and had slept in boxcars at night; that he had made an unsuccessful effort to obtain admission in a C. C. C. camp; that he had been compelled to forage for his food; that prior to his arraignment he had not consulted with any attorney; and that he entered his plea while unadvised as to his legal and constitutional rights. He says that he saw no lawyer until December 12th, six days after his arraignment, when attorney Edward Crabtree, being at the jail to see another prisoner, asked appellant if there was any insanity in his family, to which appellant responded ‘No’, and that there was no other conversation between appellant and said attorney at said time; that he did not see said attorney again until the 14th day of December, on which day appellant was tried by a jury and convicted. Appellant says that prior to the commencement of said trial said attorney asked appellant if he wished his uncle to sit at the table with him, and that this was the only conversation between appellant and said attorney before said trial began.

Appellant predicates his right to a writ of error coram nobis upon three alleged facts, namely: (1) That he was of unsound mind at the time of the commission of the offense with which he was charged and at the time of his arraignment and trial; (2) that the grand jury which indicted him, and the petit jury before which indicted him, tried were unlawfully and illegally constituted in that members of the Negro race were arbitrarily excluded therefrom by the jury commissioners; and (3) that the jury commission, the grand jury, and petit jury were not duly qualified because the members thereof did not take an oath to support the Constitution of the United States. He says that he was denied his constitutional rights because he was required to plead and enter upon trial without counsel, and did so without knowing that this would foreclose him from afterwards raising the above matters.

1. At the hearing it was shown that Edward Crabtree was the duly appointed pauper attorney for the trial court. He testified that some time before the trial he had a conference with the appellant in the jail, but he was unable to state the date or how long it was before the trial began. He stated that he believed he discussed the case at another time before trial when he was at the jail to see another prisoner, but about this he was not positive. He admitted that he did not discuss the case with any of the defendant's relatives except an uncle, with whom he talked in the courtroom just before the trial began, and that he did not make any investigation of the circumstances surrounding appellant's written confession. He was not able to recall the conversation with the uncle, nor would he say that he talked with the appellant before arraignment, but he thinks he was in the courtroom at the time appellant entered his plea. Immediately prior to the trial the attorney was engaged in the defense of another criminal case, under private employment.

The record is silent as to any specific designation of the attorney to represent the appellant. It does not disclose that appellant was represented by counsel at the arraignment, or at any time prior to the commencement of the trial. It does appear that attorney Crabtree participated in the trial of the cause by cross-examining witnesses. No evidence was offered on behalf of appellant, nor did he testify; no instructions were tendered on his behalf, nor were any exceptions reserved to the instructions given. From the evidence as set out in the record it appears that the trial began about 2:00 o'clock in the afternoon of December 14th, and that a verdict was rendered by the jury about 9:00 o'clock in the evening of the same day.

When the defendant in a criminal case desires to plead that he was of unsound mind at the time the offense charged was committed, he himself, or his counsel, must set up such a defense specially in

[18 N.E.2d 923]

writing, and the prosecuting attorney may reply thereto by a general denial. Section 9-1701, Burns' 1933, Section 2215, Baldwin's Ind.St.1934. A written plea of insanity, under the above section, need not be made at the arraignment, as is an oral plea of guilty or not guilty. Barber v. State, 1925, 197 Ind. 88, 149 N.E. 896.

Any irregularity in the selection, impaneling, or swearing of a grand jury must be pleaded by abatement. State v. Jackson, 1918, 187 Ind. 694, 121 N.E. 114;Bottorff v. State, 1927, 199 Ind. 540, 156 N.E. 555. A plea to the merits of the charge, like a plea of not guilty, waives abatement. Cooper v. State, 1889, 120 Ind. 377, 22 N.E. 320;Moore v. State, 1925, 196 Ind. 299, 141 N.E. 638.

The record on the former appeal discloses that appellant was sentenced on December 15th, and that on December 17th Elmer Q. Lockyear, Theodore Lockyear, and Charles J. Eichel entered their appearances as attorneys for the appellant. Thereafter, on January 7, 1938, they filed in said cause, on behalf of the defendant, a motion for a new trial. The motion contained assignments to the effect that attorney Crabtree was negligent in the representation of the appellant by failing to give due consideration and attention to the case; that he did not properly investigate the evidence; that he did not prepare any instructions; that he did not make proper objections to the evidence; and that he failed to tender proper forms of verdicts. In passing upon this assignment in the motion for a new trial, this court said: ‘All of these assertions are merely unsworn statements. There is nothing in the record to show what investigation was made by Mr. Crabtree, nor what attention he gave to the case. * * * There was little that any attorney could do for the appellant in the trial of the case. * * * There was no conflict of any kind in the evidence and no reason in our judgment for criticism of Mr. Crabtree.’

The petition for writ of error coram nobis can not be utilized to have a reconsideration of the matters determined by this court on the former appeal. The complaint that Mr. Crabtree was negligent and did not properly represent the appellant can therefore not now be considered. The motion for a new trial presented by the former appeal did not make any assignment to the effect that the appellant was of unsound mind at the time of the commission of the alleged offense, or that there were any irregularities with respect to the grand jury that returned the indictment, or the trial jury that heard the case. As to these assignments, now presented, the appellant says in his petition for coram nobis: ‘Petitioner further says that he did not know his constitutional rights and has just recently been advised thereof and that as soon thereafter as is possible he is availing himself of the protection of his constitutional rights, nor was he advised that he was entitled to be represented by counsel of his own choice and to consult with him at every stage of the proceedings; that he was not given an opportunity to consult with counsel prior to entering his plea and prior to trial in order to plead understandingly and to prepare his defense; that the court did not inquire as to which means petitioner possessed by which he might employ a lawyer, and did not inform him that it was the duty of the court to appoint a lawyer to appear for him in case he possessed no means to employ one, nor that he might have the lawyer of his own choice.’

It must be conceded, we think, that in a proper case coram nobis may afford a remedy for the relief of an insane person who is convicted without that fact having been brought to the attention of the trial court, where the circumstances surrounding the case disclose that the defendant was prevented from having the issue raised and presented. Such is the intimation to be found in the case of Sanders v. State, 1882, 85 Ind. 318, 44 Am.Rep. 29. See also Hawie v. State, 1919, 121 Miss. 197, ...

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23 practice notes
  • Flowers v. State, No. 29336
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1956
    ...31 Ind. 492, supra; Goodwin v. State, 1884, 96 Ind. 550, supra; Morgan v. State, 1921, 190 Ind. 411, 130 N.E. 528; Swain v. State, 1939, 215 Ind. 259, 18 N.E.2d 921; Kallas v. State, 1949, 227 Ind. 103, 83 N.E.2d 769, [236 Ind. 167] It is not error to refuse a tendered instruction if the sa......
  • State v. Brown, 2288
    • United States
    • United States State Supreme Court of Wyoming
    • September 26, 1944
    ...58, pp. 122-123; Commonwealth v. Trippi, (Mass.) 167 N.E. 354; Patterson v. The People, 46 Barbour S.C. Rep. 633; Swain v. State (Ind.) 18 N.E.2d 921; Rosier v. State (Ga.) 195 S.E. 172; People v. Marquis (Ill.) 344 Ill. 261, 176 N.E. 314, 74 A.L.R. 751; Kemnamer v. State (Okla.) 57 P. 2d 6......
  • Marx v. State, No. 29360
    • United States
    • Indiana Supreme Court of Indiana
    • March 21, 1957
    ...denied [236 Ind. 461] 336 U.S. 940, 69 S.Ct. 744, 93 L.Ed. 1098; Foster v. State, 1944, 222 Ind. 133, 52 N.E.2d 358; Swain v. State, 1939, 215 Ind. 259, 18 N.E.2d 921; 7 Notre Dame L.J. 390; 30 Ind.L.J. In Goodwin v. State, 1884, 96 Ind. 550, this court held the finding of insanity at an in......
  • Whitaker v. State, No. 29712
    • United States
    • Indiana Supreme Court of Indiana
    • July 8, 1960
    ...issue.' Goodwin v. State, 1884, 96 Ind. 550, 576; Morgan v. State, Page 215 1921, 190 Ind. 411, 417, 130 N.E. 528; Swain v. State, 1939, 215 Ind. 259, 268, 18 N.E.2d 921; Sweet v. State, 1941, 218 Ind. 182, 190, 31 N.E.2d 993; Kallas v. State, 1949, 227 Ind. 103, 122, 83 N.E.2d 769; Flowers......
  • Request a trial to view additional results
23 cases
  • Flowers v. State, No. 29336
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1956
    ...31 Ind. 492, supra; Goodwin v. State, 1884, 96 Ind. 550, supra; Morgan v. State, 1921, 190 Ind. 411, 130 N.E. 528; Swain v. State, 1939, 215 Ind. 259, 18 N.E.2d 921; Kallas v. State, 1949, 227 Ind. 103, 83 N.E.2d 769, [236 Ind. 167] It is not error to refuse a tendered instruction if the sa......
  • State v. Brown, 2288
    • United States
    • United States State Supreme Court of Wyoming
    • September 26, 1944
    ...58, pp. 122-123; Commonwealth v. Trippi, (Mass.) 167 N.E. 354; Patterson v. The People, 46 Barbour S.C. Rep. 633; Swain v. State (Ind.) 18 N.E.2d 921; Rosier v. State (Ga.) 195 S.E. 172; People v. Marquis (Ill.) 344 Ill. 261, 176 N.E. 314, 74 A.L.R. 751; Kemnamer v. State (Okla.) 57 P. 2d 6......
  • Marx v. State, No. 29360
    • United States
    • Indiana Supreme Court of Indiana
    • March 21, 1957
    ...denied [236 Ind. 461] 336 U.S. 940, 69 S.Ct. 744, 93 L.Ed. 1098; Foster v. State, 1944, 222 Ind. 133, 52 N.E.2d 358; Swain v. State, 1939, 215 Ind. 259, 18 N.E.2d 921; 7 Notre Dame L.J. 390; 30 Ind.L.J. In Goodwin v. State, 1884, 96 Ind. 550, this court held the finding of insanity at an in......
  • Whitaker v. State, No. 29712
    • United States
    • Indiana Supreme Court of Indiana
    • July 8, 1960
    ...issue.' Goodwin v. State, 1884, 96 Ind. 550, 576; Morgan v. State, Page 215 1921, 190 Ind. 411, 417, 130 N.E. 528; Swain v. State, 1939, 215 Ind. 259, 268, 18 N.E.2d 921; Sweet v. State, 1941, 218 Ind. 182, 190, 31 N.E.2d 993; Kallas v. State, 1949, 227 Ind. 103, 122, 83 N.E.2d 769; Flowers......
  • Request a trial to view additional results

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