This is an appeal in forma pauperis in which appellant, who is imprisoned in a state penitentiary pursuant to a judgment of conviction of a state court, seeks to review an order entered on July 27, 1942, denying his application for writ of habeas corpus. Appellant was not given a hearing nor was any evidence heard on his petition, but the сourt summarily disposed of the case on the petition without determining the verity of the charges made.
Appellant, а man of little education and no training in the law, filed his petition for writ of habeas corpus in the District Court for Northern Indiana. The record here does not contain the petition or application, but from the record prepared by appellant himself, it is clear that in his application he charged and alleged that his imprisonment was the result of a deprivation of rights guaranteed him by the Constitution of ■ the United States. In this court, we have appointed counsеl for him. We commend Mr. Faissler for the able services rendered.
Briefly stated, appellant charges that on March 14, 1936, he was arrested on an affidavit charging him with contributing to the delinquency of a minor (a misdemeanor, § 9-2804, Burns’ Ann.St.1933); that he was refused рermission to see or talk to an attorney; that after his arrest he was informed that the charge had been changed to sodomy (a felony, § 10-4221, Burns’ Ann. St. 1933); that the charge of sodomy was not supported by affidavit nor was an indictment charging him with that crime returned against him by a grand jury; that no counsel was appointed in his defense and he was denied the right to preparе his defense; that he is innocent of the charge of sodomy and that he was forced to plead guilty through fear induced by physical violence of three deputy sheriffs and the threats of the prosecutor.
It appears that the appellant was sentenced April 22, 1936, to two to fourteen years’ imprisonment for the crime of sodomy, imposed by thе Circuit Court of St. Joseph County, Indiana, a court of general criminal jurisdiction. Thereafter in that court he filed a petition for- writ of error coram nobis which was denied on February 8, 1941, and his application seeking a writ of mandate requiring the issuing of a writ of error coram nobis was denied by • the state Supreme Court. -It further ap
The right to counsel, a requirement of the Indiana Constitution, § 13, Art. 1, Constitution of Indiana, is of suсh fundamental character that the denial of such right by the State is the denial of due process of law, Powell v. Alabama,
Under the statutes of Indiana, § 3-1918, Burns’ Ann.St.1933, and the decisions of the courts of Indiana, State ex rel. White v. Hilgemanu,
In Ex parte Hawk,
In our case, as we have already observed, it is charged that appellant was denied а writ of error coram nobis and that when he sought a writ of mandate requiring the issuing of the writ, his application was denied by the stаte Supreme Court. Thus, he was not even permitted to get into court, much less have a hearing on his right to the writ, and he has not had the benefit of the disposition of his contentions by the Indiana courts. To deprive a citizen of his only effectivе remedy would not only be contrary to the rudimentary demands of justice but destructive of a constitutional guaranty speсifically designed to prevent injustice. Johnson v. Zerbst,
The application for the writ was good, the ultimate issue was onе of fact, and if the charges are true, concerning which we express no opinion, appellant has prеsented a case which falls within the language of the cases cited, and is entitled to be heard. The District Court should have inquired into and specifically found the facts.
In reaching this conclusion we have not overlooked the casеs of Davis v. Dowd, 7 Cir,
The case is remanded for further proceedings in conformity with this opinion.
Reversed and remanded.