*1 remedy appointment drastic The a receiver is a power appointive and the should be exercised court’s with the utmost care and caution. remedy adequate
In our there is a full justice whereby parties can be law between wrong prevented and no affected and emer been gency special have circumstances justified appointment of the shown which herein, discre the trial its receiver abused ordering appointment of a receiver under tion in the record here. the evidence foregoing judgment of the
For reasons trial court must be reversed.
Judgment reversed. JJ., Landis,
Achor, Arterburn, J., C. Jackson concur. Reported in 179 N. E. 2d
Note. — of Indiana. Penn v. State Rehearing 30,046. Filed November [No. January 19, 1962.] denied *3 Mishawaka, appellant. Doyle, L. Albert (cid:127) General, Steers, Attorney Harriette Bai- Edwin K. ley Walter J. Conn, Deputy Attorney General Peru, Prosecuting Attorney, appellee. Bixler, en- Achor, appeal from J. This an Court, May 1959, in Miami tered on Circuit of error appellant a writ wherein the court denied By attacks coram this action nobis. proceedings Miami Circuit Court validity in the upon his previously been convicted had injury in- robbery physical §6, robbery, during under Acts flicted Repl.].1 p. [§10-4101, Burns’ alleges Flinn, duly being his oath first sworn “Harold day April, in the says, the 30th on or about Indiana, Earl Penn County Robert one of Miami and State forcibly unlawfully, feloniously and did there then and rob, Taylor fear, putting violence and one Charles Calvin Taylor Calvin take one there of the value Person of said Charles and steal from the automobile, Ford then and to-wit: model Coach a black 1955 ($2,100.00) Twenty-one Hundred Dollars *4 Taylor, and belonging then there to the said Charles Calvin and injury physical and other did then and there inflict wounds Taylor upon body person the said Charles Calvin the and weapon deadly dangerous bludgeon or and instrument a or other robbing the Charles while in the commission of act of the said Taylor contrary the form of the statute in such cases Calvin provided against peace dignity and made and and Record, p. State of 3. Indiana.” Appellant urges finding here that herein is con- following to law for the reasons: trary appellant “The One: before arrest and after and prior sentencing was denied his constitutional rights. Two: sentencing, “Prior appellant was not properly tional adequately and of his advised constitu- rights. Three: “The properly was not and legally Appellant, p. committed.” Brief arguments We now by ap- consider the advanced pellant in the order above stated. support
One: In of his contention that his arrest illegal, appellant that, fact relies in his petition nobis, ap- verified for writ of error coram pellant stated he in was arrested the state that Michigan 1955; day April, on the 30th voluntarily waived extradition returned to the Indiana; placed state the Miami County jail custody by there was held in having May sheriff until 10th without been taken magistrate. allegations before a Because these verified by any pleading were fact not denied filed state, by any hearing, refuted evidence direct at the they accepted contends that be illegality true arrest thereby a matter of law.2 established as pleadings sup- 2. “Verified and affidavits therewith or in filed thereto, port thereof, opposed any proceeding writ of the coram be evidence error nohis shall considered as without petition. introduction the trial of thereof on All such part exceptions. If, shall of the without a be record bill pleadings affidavits, evidence, besides additional includ- ing evidence, heard, introduced in additional affidavits brought exceptions must be into the record bill of to be appeal.” Sup. (1958 ed.). considered Ct. R. 2-40A petitioner statements of fact “[U]ncontradicted behalf of will taken v. as true.” Abraham 2d N. E. *5 364 alleged under oath appellant has
The facts which state necessarily his arrest in the do mean not that Michigan imprisonment in the state and his arraignment contrary pending were of Indiana Although in the affi to law. the stated facts will, under Rule for writ of error coram nobis davit as evidence with 2-40A of “be considered this introduction, thereof the trial of the on out the petition,” necessarily does mean that this state accepted as true therein contained ments categorically merely they are not denied. because They may other be discredited contradicted appear proceedings, in made facts which are duty when circumstance exists it is the weigh resolve the trial court the evidence and all apparent conflict in the evidence. Schmittler v. 2d 184.3 N. E. State appeal, presumptions are in of the all the favor On regularity proceedings in the trial court. Dobson (1961), E.
v. 2d 395. N. Therefore, judg will this court not disturb upon proof except ment of the trial error. petition particular appellant’s case verified
In this by whom or under circumstances has not stated what charges, any, if he was arrested what Michigan. appears, For all in state that Michigan may “in in have been hot his arrest following pursuit” on the crime Indiana the same day, may made for crime or it have been different Michigan. Under either cir in the state of committed legal. must assume that the arrest was cumstance we appear us It from the record before does pertinent Overruled, part, pleading point on disposition of the case bar. charged by Miami Court affidavit Circuit May 2, 1955 with the crime with which we are May 4, concerned and was arrested on here statement, bail own set. Under voluntarily extradition and returned to he waived charges upon to answer state of Indiana From be- in this state. the record he was convicted determine we cannot fore us *6 Michigan
illegally
of
or
arrested in the state
that
state of Indiana in contravention
was returned
concerning the rendition and extradition
of the laws
fugitives.
respect
to
complaint, with
Furthermore,
appellant’s
brought
a
arrest,
promptly
before
he was
Acts
provisions of
magistrate pursuant
to
1956
[§9-704, Burns’
137, §1, p. 671
1939, ch.
upon which
The statute
Repl.], without merit.
is
is
this case. It
application in
no
has
relies
the war
where
only
circumstances
applicable
under
justice
magistrate,
by a
issued
rant
arrest
bar
However,
the case
city judge.
at
peace
or
authority
war
of a bench
on
appellant was arrested
filed
an affidavit
pursuant
to
and
issued
rant
authority
Court,
§§9-9084
under
Miami Circuit
procedure
Repl.
9-1001,5
Under this
Burns’
and
murder,
except
offenses,
public
treason
may_
“All
court, by
filed
affidavit
prosecuted
or criminal
in the circuit
by indict-
prosecution
except
time,
a
when
in all cases
in term
ment
pending
time
the same offense
affidavit
may be filed
filing
affidavit
And such
of such affidavit.
of
in vacation
'approval
only
time,
with the
in term
but
time as
may arraign
admit
to bail
judge of
who
proceed
may
time,
a
receive
in term
§4,
132,
p. 411
Acts
ch.
as in term time.”
forthwith
Repl.].
[§9-908, Burns’ 1956
“
filed
(a)
affidavit
is found or an
an indictment
When
of-
charging
an
against
person
commission of
him with the
a
provi-
shall, subject
judge
fense,
a
thereof
to
the court or
act,
im-
(b)
issue
the clerk to
subsection
direct
[of]
sions of
Acts
.”
mediately
.
a warrant of arrest
returnable
forthwith.
.
Repl.].
247, §1, p.
[§9-1001, Burns’
hearing
right
preliminary
be
appellant had no
arraigned
to be
magistrate,
only
but
to be
fore a
v. Sisk
Court. See:
in the Circuit
let to bail
proce
This
In contradiction rights tion that his constitutional were violated regard of his the time to the manner of his arrest and arraignment, appears he was for- of record it charged mally ar- he was with the crime rested on Miami Court affidavit filed Circuit May 2; authority on that he was arrested under May 4, day ;(cid:127) and warrant on with bail set on that .that arraigned May 10, days ar- six after his of- rest under the warrant reason of the issued fense committed. presented, ap
Under the facts above it does no rights pear constitutional respect the time and were violated with prior manner of his arrest or of his retention *7 arraignment. Appellant properly Two: that he was contends not rights adequately and of his advised constitutional entering plea prior sen- of his agree tencing. Although the record does we that language unequivocal not demonstrate in clear and regarding appellant specifically was informed that rights, all his or that understood constitutional guilty, rights entering plea of all of before his say all from we are able nevertheless appellant appears record as it before us that was not fully regarding rights his constitutional informed entering guilty. prior to his It provided should be noted had been public expense with counsel at and we must assume discharged duty by the counsel inform his ing regarding his client the nature charged, crime penalty with which he was imposed, rights to trial constitutional by jury, subpoena by witnesses, and be confronted etc., presumption prevail and this will until overcome by strong convincing proof. Dowling et al. v. 426, 431, 118 E.N. 2d 801.
Furthermore, the record discloses that court in- regarding structed other defendants their constitu- rights presence tional in the of the defendant and interrogated when he latter defendant stated that he had heard and his understood constitutional been, rights they explained had to other defendants. Also, although case, it is to be noted that in this appellant alleged in his affidavit and stated on the fully
witness that he stand was not informed rights by as to his constitutional either court-appointed itself, counsel or testimony an examination of his affidavit and upon subject only specific discloses that matter re garding fully which he that he asserts in formed is the fact that the offense with which he was charged pleaded guilty to which he carried a sen imprisonment. However, tence of life there is serious clearly conflict even this issue. The record shows accepting appellant’s plea before guilty, the affidavit read according Furthermore,
charged. p. 32, to the record at controlling which, by read the statute language, provided that clear and concise “shall, upon conviction, *8 accused im- crime the according And, prison life.”6 prisoned in the state testimony, to ex- tried appellant’s to the own imposed. Thus it plain penalty the crime which the record, appears, as matter by prescribed regarding penalty was informed offense to which defined the statute which guilty. pleaded give contradictions attention several
We next re- appellant’s testimony was trial court testimony. evaluating quired appellant’s to consider in petition appellant’s In verified stated: plea petitioner of not true entered a “[I]t only through May in- guilty 10th by prosecuting attorney ducements county, petitioner was this courts sheriff of said induced change plea, presumptions his on the impose a would maximum term that which would years.” Record, p. not exceed [Emphasis added.] accusation, respect made with serious is a This However, hearing appellant public officers. representations were made no concedes that attorney. Appellant testified that prosecuting only by the This representation made sheriff. ignored by the trial could not contradiction nor do so. will we appellant’s
A contradiction to statement further of a in- the result false record, sheriff is found in the ducement made at the time of commitment. made At any physical injury upon wound or other inflicts “Whoever firearm, any dirk, stiletto, bludgeon, billy, club, person any deadly blackjack, dangerous weapon other or instru- engaged robbery, in the of a ment while commission or while robbery, shall, upon eonviotion, attempting to commit a be im- prison prisoned 148, §6, in the state Acts life.” p. [§10-4101, Repl.] [Emphasis Burns’ 1956 added.] *9 companion exonerate his in order to he that time stated he respect the crime any responsibility with to from robbing of the crime responsibility accepted full whom he bludgeoning of a car with the owner and hearing hitchhiking. theAt companion were the and changed story appellant his to the coram nobis the automobile he owner the that the effect beat rage by a prompted made statement in a fit robbery solely his the act of victim, was and that his appellant, In a further contradiction companion. still proceedings at in error the on cross-examination stating story he nobis, his that reversed coram guilty. complete guilty he pleaded because was This regarding guilt position his repeated reversal regarding appellant apparent perjury of the the plea his which he entered under the circumstances required guilty the court was matters which are along appellant’s verified statement consider import plea of his the not understand he did that (1950), 228 v. State guilty. See: Schmittler 93 N. E. 2d present circumstances here the
Under was, fact, fully in the concluded rights that, constitutional of his formed contrary, notwithstanding the his statement consequences of but the understood he plea of because entered nevertheless he wanted to exonerate his guilty and because responsibility in the crime. all companion from improperly he is now Appellant claims that Three: Prison because Indiana State confined arraignment proceedings transcript of the was, by pronounce- oral indicates that sentence Indiana Re- sentenced “to the State of the ment [Record, your . life. . .” period of formatory p. longhand It is transcript true that of the 32.] proceedings commitment, record of at the time of reported by reporter, the shorthand states that orally ordered committed Reformatory. However, Indiana State apparent it judge publicly place if the so announced the commitment such was erroneous announcement under mandatory Under statute. statute it appellant be committed to the Indiana State Prison Reformatory]. the Indiana [not Acts §6, p. [§10-4101, Repl.]. Burns’ 1956
Furthermore, entry commitment, the Order Book of by day May, made the court on 20th (the of day), same reads follows: as court, having “And the heard the evidence and being sufficiently premises, advised in the now finds, decreed, ordered, adjudged and it is now so charged the defendant is twenty-five years age, he and that is of and that n be, now is should sentenced the Indiana Record, State Prison for the term of his life.” p. 9. reporter pro Whether the court erroneously tem place verbally of noted commitment as by ordered court, or mistakenly whether the court wrong penal named the place institution as the of by commitment corrected the error entry means Order Book of commitment is proceedings. material to this pro The statute which vided for the crime for which was sentenced imprisonment makes in the Indiana State Prison mandatory, and by if error was committed respect with to the institution which confined, duty it was ordered was his enter record the sentence in the Order correct Book. See: Marshall v. State N. E. 2d proof burden of Appellant failed to sustain has by preponderance of the evidence that fair right legal or constitutional denied some nobis; subject coram error proper a is affirmed. be therefore, 646; 234, 131 N. E. 2d (1956), 235 Ind. Grecu v. 137,107 E. 2d 264. N. (1952), 231 Ind. Sells v. State mailed copy opinion ordered this Also a consideration Prison for Indiana State warden swear- for the false penalties by imposing him as to pro- petition, as ing appellant’s verified contained Repl.7 §9-3307, by Burns’ vided Judgment affirmed. JJ., Bobbitt, concur.
Landis, J., C. Arterburn opinion. Jackson, J., dissents nobis coram any petitioner of error writ if “Hereafter federal, any state or corpus in for a or writ of habeas affidavit, deposition, any or petition, or in shall his verified witness proceeding, as a any or or taken in said examination fact, any allegation falsely touching swear affirm _ petitioner so If such bad conduct. same shall be considered guilty determinate by section be defined of bad conduct as serving_ superintendent in- sentence, of such the warden or trustees stitution, the board of and with consent hearing, deprive power, upon thereof, such shall have the exceeding time, good one prisoner portion all the may gained prisoner year, gained or which thereafter *11 any regulations pursuant in- the rules or of such to law or peti- concerning of If such the diminution sentence. stitution tioner by as defined this section of conduct so bad superin- sentence, serving the warden an indeterminate institution, by the and with the consent of tendent of such thereof, upon hearing, power, have the board of trustees shall time, year, one when he shall be to extend the to exceed discharge upon eligible apply parole or an for a absolute such such to petitioner parole, If such be on indeterminate sentence. parole of conduct shall be cause for revocation after hear- bad superintendent ing board of the warden or and determination institution, upon trustees of such such determina- ineligible apply parole petitioner shall be to tion the for discharge during time the an absolute such remainder 1947, 189, as said authorities shall determine.” Acts sentence §7, p. [§9-3307, Repl.]. Burns' 1956 625 Dissenting Opinion J. The record in this case discloses that Jackson, Judge the pros- of the Miami Court swore the Circuit ecuting witness, Flinn, Harold E. to the affidavit charging appellant crime of he Judge. subsequently was There- convicted the same after, Judge May, 1955, on day the 20th sen- prison tenced life. pointed majority opinion
As ap- out in pellant by whom, does state under what circum- charges stances or he what was arrested in the Michigan. does, by petition, State He verified aver Michigan that he was arrested in the State on day April, the 30th 1955. The record discloses that the bench warrant on which was arrested 4,May connection, on issued 1955. In that with reference to contention that “uncon- petitioners tradicted statements of fact in behalf of true,” (1950), taken will be Abraham v. State 179, 181, 91 N. E. 2d State its brief “ pages 11 says part that, t to be [i] noted although Appellant’s in the face of uncontradicted Michigan verified statement was arrested in April 30, 1955 the record is as to silent arrest Appellant prior May 1955; under a warrant however, Appellant’s support silence does not thereby illegally conclusion law that de- tained. ...” majority opinion heavily
The herein relies on case Schmittler v. affirming 2d
N. E. of the trial appeal. pointed in the matter of It is here vigorous there two out were dissents opinion by disssenting able members of this *12 bearing questions here in directly opinions on the authority. ample We being supported by issue large in case was point that the further out Schmittler Lindsey; by part v. of State overruled case 126, 106 N. E. 2d (1952), 231 Carroll v. reversed, judgment court should be of the trial
The petition grant writ for to with instructions appellant with- permit to and to error coram nobis guilty. draw his Rehearing
On Petition For rehearing as- appellant C. J. As cause Achor, opinion decision in its serts court erred this following: in the writing failing give in to “In a statement give failing thereon of a decision substan- arising record, presented question on the
tial by trial court brief, As to two-wit: whether failing erred in to ask the legal judgment why if cause to show he had pronounced upon him, required be should Annotated, 9-2205, Statutes, Burns’ Ind. Section Repl. 1.” Vol. Part argument question discussed oral This However, upon ap court. re-examination this pellant’s we note that the issue brief page counsel not in raised Since did argument formally oral waive the course request proper issue, it this writing and decision render a to make statement question of law. controlling of the circum- which is The statute here involved follows: is as stances judgment, he appears for the defendant “When informed the verdict jury, finding or the of the and asked any legal whether he why have cause to show pronounced upon should not be him.” *13 1905, 169, §294, p. ch. [§9-2205, Acts 584 Burns’ Repl.]. 1956
However, construing statute, in the above must it integral part be it observed that an is of the 1905 exclusively Act which dealt with the matter of the pronouncement judgment against the defendant finding guilty.”1 “after a or verdict of Such a cir- only plea guilty, cumstance exists after a of not trial resulting finding a guilty. and verdict of application The statute not does have under cir a pleads guilty cumstance where a defendant defendant, finding against guilty, 1. “After a or verdict of arrested, judgment if granted, a new trial not be not or the be pronounce 169, §290, judgment.” 1905, the court must Acts ch. p. [§9-2201, Repl.]. 584 Burns’ 1956 purpose judgment, “For of- if the be for an conviction punishable by imprisonment, fense defendant must death or personally present; only personally be present, if for fine he must be responsible person or some undertake for him to replevy judgment costs; judgment may then be ren- 1905, 169, §291, p. [§9-2202, dered in his absence.” Acts 584 ch. Repl.]. Burns’ 1956 any offense, “When the defendant is convicted of if he be custody, may custody the court direct the officer in whose bring judgment.” is to 1905, him before it for Acts ch. §292, 584, [§9-2203, Repl.]. Burns’ 1956 p. any present “If in per- case the defendant not be when his necessary, may sonal attendance is order the clerk to arrest, may issue a warrant for his be served county state, of this as a warrant of arrest in other cases is 169, §293, p. served.” Acts [§9-2204, ch. 584 Burns’ 1956 Repl.]. appears “When the judgment, defendant he must be in- formed the court of the jury, verdict finding of the or the of the any legal asked whether he have cause to why judgment pronounced show upon should not be him.” Acts 169, §294, p. [§9-2205, Repl.]. ch. Burns’ 1956 alleged “If not sufficient appear cause be why to the court pronounced, should not thereupon be it shall be ren- 169, §295, p. dered.” Acts [§9-2206, Burns’ Repl.]. charged. Under which he offense apprised having previously circumstances, been law, rights no basis his under there is “legal . cause . . show defendant could under which a pronounced him.” why judgment should be guilty, supra] By appellant, in ef [§9-2205, judg legal why fect, cause exists that no admitted §9-2205, Therefore, pronounced. should not ment supra, applicable where under circumstances is not finding jury or a no there is verdict court.2 only where defendant under circumstances
It
charge
(1) pleaded
guilty
been
to a
and has
has
(2)
not filed a
found
has
tried and
for new trial
motion
arrest
motion
asserting
why
law
judgment,
reasons of
therin
*14
judgment
pronounced,
such de
be
should
given
(who may
counsel)
be
without
fendant
“any legal
orally
opportunity
to state
any]
why judgment
show
should
there be
cause [if
[§9-2205, supra.]
pronounced
Lillard
him.”
not be
383;
(1898),
E.
50 N.
The State
v.
(1860),
Arterburn, concur. Bobbitt and Jackson, J., dissents. Rehearing Reported E. 2d 889. in 177 N.
Note. — N. denied 179 E. 2d 283. necessary entered, finding no 2. When plea. Dowd, follows Witte v. Warden 485, 496, 102 N. 2d 344 U. S. E. 654, 73
L. Ed. Ct. S. general propositions related to 3. Por a consideration issue, see, above 113 A. L. R.