Hillman v. State , 234 Ind. 27 ( 1954 )

Gilkison, J.

On September 10, 1953, appellant was charged in the Allen Circuit Court with the crime of rape of a girl eleven years of age. He had been arrested on the 27th of August, 1953, and held in jail continuously thereafter until and after he was so charged. On September 14, 1953, the court appointed a pauper attorney to serve appellant. A plea of not guilty was entered and on October 7th, 1953, appellant was tried by the court, without mention of a jury. He was found guilty and sentenced to the Indiana State Prison for life on the same date. There is no affirmative showing in the record that appellant ever waived his right to a jury trial.

On December 1, 1953, appellant filed his verified petition for coram nobis, in the Allen Circuit Court among other things averring:

(1) That the pauper attorney appointed to serve him rendered only perfunctory service to appellant as follows: (a) That he did not ask for a stenographer to report the proceedings in the trial and for that reason no bill of exceptions could be had, upon which to base an appeal, nor could a motion for a new trial, based upon error in the trial procedure be prepared or filed, (b) That the pauper attorney knew appellant had signed a statement produced by fear from beatings he had received from the police and the threat of further beatings if he failed to sign the statement, but allowed the statement to be offered in evidence without objection and without offering any evidence in rebuttal thereof, and refused to permit appellant to testify in his own behalf on that matter, or even to deny that he had committed the crime with which he was charged or to testify at all. (c) That he rested his defense without putting in any defense evidence whatever, (d) That he made no argument or statement to the court whatever in appellant’s defense, (e) That he refused to interview, have subpoenaed, or offer as witnesses three persons who were with appellant at the time the alleged crime was committed, though appellant gave him their names and the locality of their residence, and they were all easily available.

(2) That after his arrest he was questioned by police concerning the alleged crime. When he denied any knowledge concerning it, he was accused of lying and one of the policemen struck and beat him with great violence. Then they told him that another policeman who was present would be still rougher on him. That it was because of this treatment and threat that he signed the statement the police had prepared. He was then taken to the jail at Huntington, Indiana, where he suffered greatly from the beating he had received.

(3) That appellant never at any time waived his right to a jury trial. That he did not know he had .a right to object to a trial without a jury, and he never at any time authorized his attorney, the judge or anyone else to waive a jury trial of the cause.

(4) That appellant was poor, ignorant of the law and of his rights, and that he depended wholly upon the attorney appointed for him by the judge. That his representation by said attorney was less than pro forma. That the prosecuting witness was so questioned as to be practically instructed what to testify.

That within less than three hours after his trial began he was on his way to the State Prison where he has been since.

The state put the cause at issue by general denial. Upon trial of the coram nobis proceeding on January 19, 1954, there was a finding and judgment for the state.

There was no argument at all, and there was no court reporter.

Appellant testified fully in support of the several charges noted.

The policemen denied that they had beaten, or threatened appellant, but did not deny continuous and prolonged questioning.

The pauper attorney testified that he was unable to find the witnesses appellant told him about, he did not testify that he ever looked for them. So far as shown by the evidence he did not have a subpoena issued for these witnesses and placed in the hands of the Sheriff for service and return, and thus have the aid of a trained officer in searching for them, or thus to show some diligence upon his part to support a motion for continuance, because of the absence of the witnesses. He did not ask for a continuance of the cause because of the absence of these witnesses, in order that he might make a further search for them. It appears that these were to be alibi witnesses, but the pauper attorney gave no notice of his intention to offer evidence of alibi as required by statute, §§9-1631, 9-1632, 9-1633, Burns’ 1942 Repl. This absence of effort on the part of the pauper attorney indicates that he never at any time intended to use the alibi evidence even if it were available. The pauper attorney as a witness, did not pretend that he made any opening statement for the defense to the court, nor that he ever cross-examined any of the state’s witnessees, nor made any objection to any question put to any witness by the state, either as to substance or form. He did not claim that he produced or attempted to produce any evidence whatever for his client, nor that he made any opening statement or closing argument for him. In fact, it appears from his evidence, that he never was heard to say one word from the beginning to and including the close of the trial proceedings. What then does he claim to have done?

(1) He claims he told his client that he had a right to a jury trial, but his client said he was innocent and did not want a jury. On this subject the lawyer seems to have taken his client’s advice, instead of giving advice to his client. He did not ask for a jury.

(2) He said he told appellant he had a right to take the witness chair, and appellant said he didn’t want to. Again the lawyer seems to have taken advice from his client, instead of giving him advice. He did not put appellant on the witness-stand.

Notwithstanding the fact that an able, regularly employed court reporter was available, he did not ask for the service of a reporter in the case and the judge did not require such service.

The attorney’s reason for not asking for or having a reporter is:

“I thought that was one of the easiest cases that I was going to win, because Thomas Hillman never was there and he never signed a statement and, under those circumstances I thought it would be impossible to get a conviction.”

Such, apparently, were the thoughts of appellant’s attorney when his client was being tried for a heinous crime, where conviction would cost him his liberty for life. He relied wholly on his hopes of the weakness of the state’s evidence, and did nothing whatever for his client.

Another peculiarity of the case is that the trial was had in the court’s chambers, and not in the courtroom, notwithstanding the constitutional provision: “All courts shall be open; . . .” Art. 1, Sec. 12, Indiana Constitution.

We have heretofore said:

“These provisions of the Constitution are a part of the fundamental law of the state, declared by the people themselves acting in their sovereign capacity. Ellingham v. Dye (1913), 178 Ind. 336. 99 N. E. 1, Am. Cas. 1915 C 200. As such they are entitled to strict construction. Lafayette, Muncie and Bloomington R. R. Co. v. Geiger (1870), 34 Ind. 185. It has been said that the language of each provision of the Constitution is to be considered as though every word had been hammered into place. State ex rel. Hovey v. Noble (1888), 118 Ind. 350, 21 N. E. 244.” Warren v. Indiana Telephone Co. (1940), 217 Ind. 93, 101, 26 N. E. 2d 399.

The Constitution of Indiana provides:

“In all criminal prosecutions, the accused shall have the right . . . ; to be heard by himself and counsel; . . . ” Art. 1, Sec. 13.

With respect to a situation such as we have in this case, this court has said:

“As pointed out in the beginning, the United States Supreme Court has held that, under the Federal Constitution, there can be no valid trial of a criminal case unless the defendant is adequately defended by counsel, and that a judgment rendered under such circumstances is void. This court has consistently held that, under the Constitution of Indiana, there can be no valid judgment against a defendant in a criminal case unless he has been offered, and, if so desired, provided with, adequate counsel.” (Our italics.) Knox County Council v. State ex rel. McCormick (1940), 217 Ind. 493, 510, 29 N. E. 2d 405; Sweet v. State (1954), 233 Ind. 160, 164, 117 N. E. 2d 745. See also Wilson v. State (1943), 222 Ind. 63, 79, 51 N. E. 2d 848; State ex rel. White v. Hilgeman, Judge (1941), 218 Ind. 572, 578, 34 N. E. 2d 129; Sanchez v. State (1927), 199 Ind. 235, 245, 157 N. E. 1; Castro v. State (1925), 196 Ind. 385, 391, 147 N. E. 321.

In Castro v. State, 196 Ind. 385, supra, at page 391, this court said:

“And mere perfunctory action by an attorney assuming to represent one accused of crime which falls short of presenting the evidence favorable to him and invoking the rules of law intended to prevent conviction for an offense of which the accused is innocent, or the imposition of a penalty more severe than is deserved, should not be tolerated.”

This statement is quoted with approval by this court in Wilson v. State (1943), 222 Ind. 63, at page 81, and definitely is the applicable law in Indiana in the instant case.

The record indicates that the appellant is a poor, uneducated and very ignorant young negro. Apparently he was without friends’ or relatives’ assistance. When prosecuted, his defense, under our Constitution and laws, became a solemn duty of the court in which the prosecution was pending. Under our laws the court must perform its duties with reference to such defense in the utmost good faith, by the appointment of a competent attorney. It is not sufficient just to appoint one who has been admitted to the bar, but it must be an attorney who not only has the ability to defend but one who has a determined will to defend, and “Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed.” Burns’ 1946 Eepl., Sec. 4-3608, Cl. Eighth. The United States Supreme Court has ably said:

“. . . Undivided allegiance and faithful, devoted service to a client are prized traditions of the American lawyer. It is this kind of service for which the Sixth Amendment makes provision. And nowhere is this service deemed more honorable than in case of appointment to represent an accused too poor to hire a lawyer, even though the accused may be a member of an unpopular or hated group, or may be charged with an offense which is peculiarly abhorrent.” Von Moltke v. Gillies (1948), 332 U. S. 708, 725, 68 S. Ct. 316, 324, 92 L. Ed. 309, 322; Glasser v. United States (1942), 315 U. S. 60, 70, 62 S. Ct. 457, 86 L. Ed. 680, 699.

The service rendered by the pauper attorney for his client in the instant case does not indicate that he was competent to defend one charged with crime. The services rendered, if any, were wholly inadequate. Appellant could not have been worse off if he had had no attorney at all. The appointment of such an incompetent attorney, and his failure to render any actual service to his client, falls far short of our constitutional requirement, that the defendant has a right “to be heard by himself and counsel.” It has the elements of an ex parte trial. Hendryx v. State (1891), 130 Ind. 265, 269, 29 N. E. 1131. Such a trial was envisioned by this court one hundred years ago, when it said:

“. . . It is not to be thought of, in a civilized community, for a moment, that any citizen put in jeopardy of life or liberty, should be debarred of counsel because he was too poor to employ such aid. No court could be respected, or respect itself, to sit and hear such a trial. The defense of the poor, in such cases is a duty resting somewhere, which will be at once conceded as essential to the accused, to the court and to the public.” Webb v. Baird (1854), 6 Ind. 13, 18.

The trial of appellant attacked by this corara nobis petition does not comport with the due course of law provision of the Indiana Constitution §12, Art. 1, or the due process of law provision of the 14th Amendment of the United States Constitution.

The judgment of the Allen Circuit Court is reversed with instructions to enter a finding and judgment for the plaintiff, granting him a new trial, and further proceedings agreeable with this opinion.

Bobbitt, J., and Draper, J., dissenting. Emmert, J., concurring with opinion. Flanagan, J., concurring.