Woods v. State, 369S67
| Decision Date | 30 December 1970 |
| Docket Number | No. 369S67,369S67 |
| Citation | 265 N.E.2d 244,255 Ind. 483 |
| Parties | Frankie J. WOODS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Frank E. Spencer, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Kenneth M. McDermott, Deputy Atty. Gen., for appellee.
ON PETITION FOR REHEARING
The appellant has filed a petition for rehearing in the above entitled cause.
Appellant's contention in paragraph 2 of his petition is without merit, for this Court in its original opinion affirming appellant's conviction did not contravene a ruling precedent previously set forth in the case of Wilson v. State (1943), 222 Ind. 63, 78, 51 N.E.2d 848, 854. The case at bar and Wilson are thoroughly distinguishable on the basis of the facts presented to the court in each. The facts peculiar to Wilson prompted this Court to make the following statement:
'When the judge indicated that appellant was perjuring or about to perjure himself appellant was so discredited before the jury that an adverse verdict was a foregone conclusion.' (Emphasis supplied.)
The record before this Court does not show that the remarks of the prosecuting attorney, whch were not objected to when made, were so gravely prejudicial to the appellant as to conclusively seal his guilt.
Furthermore, this Court's opinion in Wilson seems to be based in part upon the theory that the appellant therein was denied his constitutional right to the effective assistance of counsel. There is no indication in the case at bar that appellant's counsel was so derlict in his duty to provide his client with adequate representation that he violated this constitutional mandate.
Appellant's argument in paragraph 3 of his petition is well taken, and, therefore, in light of this Court's recent opinion in McDougall v. State (1970), Ind., 257 N.E.2d 674, we feel appellant's sentence should be reduced from the maximum of 25 years heretofore imposed to 20 years.
This petition for rehearing is now granted for the sole purpose of granting the petitioner a modification of his sentence, and this cause is remanded to the trial court with instructions to enter a corrected judgment and commitment nunc pro tunc sentencing the appellant to the Indiana State Reformatory for a period of not less than ten (10) nor more than twenty (20) years.
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