89 N.E.2d 281 | Ind. | 1949
Lead Opinion
This is an appeal from an order denying appellant's petition for a writ of error coram nobis. The order was entered on the 27th day of May, 1949. The transcript on appeal was filed with the clerk of this court on July 8, 1949. Rule 2-40 of this court provides as follows:
"An appeal may be taken to the Supreme Court from an order granting or denying a petition for a writ of error coram nobis. The sufficiency of the pleadings and of the evidence to entitle the petitioner to the writ will be considered upon an assignment of error that the order is contrary to law. The transcript of so much of the record as is necessary to present all questions raised by appellant's propositions shall be filed with the Clerk of the Supreme Court within thirty (30) days after the date of the order. . . . ."
It appears, therefore, that this appeal was not perfected within the time allowed by the rule, and, as stated in Brady v.Garrison (1912),
"It has been held uniformly by this court that an appeal must be taken within the time limited *739 by statute, and that unless the transcript and assignment of errors are filed within that time there is no cause in this court. (citing cases)."
Filing the transcript in this court within time is jurisdictional, and when the record is not filed in this court on time the appeal will be dismissed. Vail v. Page (1911), 1.
In Vail v. Page, supra, Judge Douglas Morris, speaking for this court, said,
"Without discussing the question of the waiver of the right to file the petition to dismiss by reason of the failure to file the bond, it is sufficient to say that by failure to file the transcript within the statutory period of 100 days, this court never acquired jurisdiction of the appeal, and, in such case, it would be the duty of the court, on its own motion, to order a dismissal. (citing cases)."
In Gundy, Admr. v. McDowell Lumber Company, supra, it is said,
"The filing of the transcript within the time fixed by the statutes is jurisdictional and if filed too late, the appeal must be dismissed."
Rule 2-40 provides that in the type of action here involved the transcript shall be filed with the Clerk of *740 this court within 30 days after the date of the order and 2. the transcript not having been so filed this court is without jurisdiction.
It is true that in this case a motion for a new trial was filed on June 9, 1949, and was overruled on the same day and the transcript was filed herein on the 30th day thereafter. In the motion for a new trial the only error assigned was that the court erred in denying defendant's motion and petition for a writ of error coram nobis. It was not alleged in the motion for a new trial that the action of the court was contrary to law. The filing of this motion for a new trial did not serve to extend the time for perfecting the appeal herein.
Motions for a new trial are not contemplated in coram nobis proceedings. Fluty v. State (1946),
Because of failure to file the transcript in this case within the time fixed by the rules, this court is without jurisdiction and this appeal is dismissed.
Emmert, J., dissents with opinion.
Gilkison, J., dissents and concurs in dissenting opinion.
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Dissenting Opinion
DISSENTING OPINION The Indiana courts ought to wash their own judicial linen. It is the duty of this court to see that this is done. We should not leave without a state remedy, wrongs which will have to be corrected in the federal courts. As long as the federal constitution "shall be the supreme law of the land; and the judges in every state shall be bound thereby . . . anything in the constitution or laws of any state to the contrary notwithstanding,"1 it is our sworn duty to enforce "due process" under the Fourteenth Amendment. Society suffers, respect for law is weakened and public funds are needlessly expended when we deny relief for violations of due process, and force prisoners into the federal courts for protection of their rights.
The Indiana constitution is specific on the right to counsel by an accused. Section 13 of Article I, commands that, "In all criminal prosecutions the accused shall have the right . . . to be heard by himself and counsel." This provision is self-executing. Webb v. Baird *742
(1854),
Under the many decisions of the United States Supreme Court on protecting the rights of an accused under "due process," the state courts are no longer free to make their own mistakes in providing fair treatment for one charged with a serious crime. It is doubtful if any period in the history of law has ever witnessed a wiser or more salutory extension of jurisdiction. Since Webb v. Baird (1854),
When an appellant asserts that he has been deprived of his liberty or life under our Bill of Rights, his sworn allegations, which are uncontradicted by the state, will be taken as true on review. Sanders v. State (1882),
From the number of times this court is requested to review the actions of trial courts in appointing counsel for indigent accused persons, and the importance of a satisfactory and complete discharge of this duty by the trial court, it may be of benefit to state again the general principles involved, in order to lessen the frequent occurrences of such issues coming before trial courts and this court.
There is no more honorable or important employment any member of the legal profession may undertake than the acceptance of the court's appointment to represent an indigent accused. The accused cannot dictate the choice, nor is the trial judge at liberty to delegate or abdicate his discretion to the board of county commissioners, *744
or anyone else, to choose competent counsel for an accused under a particular criminal charge. It may well be that a county attorney, who is employed by the board of county commissioners, is competent in all cases to render effective legal assistance to pauper defendants, but the trial judge is under the imperative duty to make his independent determination in each particular prosecution. There must be no doubt at any time that the appointed lawyer is representing the accused and not the state.Glasser v. United States (1942),
The accused must be informed of all of his constitutional rights in such a manner that he understands them, and his confidences must be respected. The attorney is under the duty to make an independent investigation of the facts and be in a position to correctly advise his client on all the questions of law involved in the case. The accused has the right to require the state to prove him guilty of each material allegation beyond a reasonable doubt before a lawful conviction can be had. The fact that the compensation, which is to be fixed by the court, may seem to him inadequate must not lessen his zeal in the protection of his client's interests. The legal profession, speaking through the Canons of Ethics of the American Bar Association, has clearly stated these duties and rights in the following language:
"A lawyer assigned as counsel for an indigent prisoner ought not to ask to be excused for any trivial reason, and should always exert his best efforts in his behalf." Canon 4.
"It is the right of the lawyer to undertake the defense of a person accused of crime, regardless of his personal opinion as to the guilt of the accused; *745 otherwise innocent persons, victims only of suspicious circumstances, might be denied proper defense. Having undertaken such defense, the lawyer is bound by all fair and honorable means, to present every defense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by due process of law." Canon 5.
"A lawyer should endeavor to obtain full knowledge of his client's cause before advising thereon, and he is bound to give a candid opinion of the merits and probable result of pending or contemplated litigation. . . ." Canon 8.
"The lawyer owes `entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability,' to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. . . ." Canon 15.
In this case the issues presented by appellant's petition for writ of error coram nobis directly raised the issue of adequacy and competency of counsel appointed by the court to represent him as a poor person. The record discloses that the trial court appointed the county attorney to represent appellant after he had requested the court to appoint an attorney for him. It is unnecessary to discuss other contentions presented by the appellant which the trial court was justified in finding not sustained by the evidence. However, on the hearing the appellant called his former attorney as a witness in his behalf. The attorney testified he had fifteen years experience in the practice of law, that he "read the affidavit to them [appellant], explained it;" that he told him that the sentence would be a determinate term between *746 ten and twenty-five years for automobile banditry; then as far as counsel recalled, during the discussion there was no fact brought out that would support a plea of not guilty or give any defense, and that the interview took "possibly fifteen minutes to half an hour." It is uncontradicted from other parts of the record that the appellant was not arrested at the scene of the crime or in fresh pursuit, but was arrested elsewhere the following day. There is no evidence in the record to contradict the appellant's contention that he was not advised of his right to require the state to prove him guilty beyond a reasonable doubt before conviction.
It is not necessary to discuss at length the sufficiency of the second count of the affidavit2 to constitute a valid charge of automobile banditry under § 10-4710, Burns' 1942 Replacement (Acts of 1929, ch. 54, § 3, p. 136).3 Clearly the form of the charge called for independent legal research to determine its validity under the law. *747
Counsel should have investigated the law as to included offenses under automobile banditry as charged in the second count. Sections 5 and 6 of Ch. 54 of the 1929 Acts, which was popularly known as the Hartsell Act, were repealed by Ch. 85 of the 1935 Acts. These sections prohibited the jury from finding a defendant guilty of a lesser offense included in a charge of robbery, burglary, automobile banditry and murder. The inference is plain that the legislature had determined, in the light of experience, that the severity of the penalties imposed by Ch. 54 of the 1929 Acts was resulting in hung juries or acquittals. The cases of Mahoney v. State (1932),
The attorney's testimony taken as a whole concerning the fifteen or thirty minutes conference had with the appellant leaves the inescapable conclusion that he *748
did not afford the appellant the representation required by the decisions of this court under § 13 of Article I of our Bill of Rights. A mere perfunctory representation by counsel is insufficient. Rhodes v. State (1927),
The fact that appellant may have been guilty as revealed by his confidential communications to his counsel, did not deprive him of his constitutional rights, and when such an issue is raised the guilt of an accused is of no consideration in disposing of the constitutional issue. Batchelor v. State (1920),
No one questions the propriety of rules, either statutory or court made, for the determination of appeals. But this court in recent years has in many instances properly refused to permit rules to become the instrument of oppression. Where an accused has been deprived of his constitutional rights, negligence of counsel cannot be permitted to prejudice such rights of an accused where his life or liberty are involved. This court has the power and it should be its duty to waive any given rule where, (1) an accused has been deprived of his constitutional rights, either under our Bill of Rights or under the Fourteenth Amendment, or, (2) where upon an examination of the entire record it appears that substantial justice has not been administered. *749
In this appeal the state made no motion to dismiss because the appeal was not perfected within time. In State v. Walters
(1878),
The fact that appellant's present counsel was mistaken as to the time in which appeal should be perfected should not prevent a review when the record is here, and the only defect is one raised by the court on its own motion in that the transcript and assignment of errors was not filed within thirty days after the judgment, as required by Rule 2-40. The constitutional right to adequate and competent representation by counsel means nothing if we permit the obvious mistakes of counsel to prevent a review by this court on the merits.
The appellant did pursue the proper manner to review the constitutional questions in the trial court by filing a petition for a writ of error coram nobis. Sanders v. State (1882),
Even in civil cases in order to accomplish substantial justice this court has said, "It is sufficient to say that *750
by subsequent decision this court is clearly committed to the doctrine that courts have jurisdiction to grant new trials beyond the statute (see cases, supra), and that the right to an appeal does not depend upon a statute. Warren v. Indiana TelephoneCo. (1940),
Recently this court took jurisdiction of two appeals from the orders and judgments of the trial court, which were so imperfectly presented here that if the matter had involved civil rights both would have been subject to dismissal. In Lobaugh v.State (1948),
No possible harm can result to society by permitting appellant's plea of guilty to be withdrawn, and having a trial on the merits. Dobosky v. State (1915),
GILKISON, J., concurs in this opinion.
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