# State Ex Rel. McManamon v. Blackford Circuit Court

> Indiana Supreme Court · December 1, 1950 · 229 Ind. 3

URL: https://www.frixlaw.com/law-library/cases/9541007

## Case

- **Full name:** State Ex Rel. McManamon Et Al. v. Blackford Circuit Court Et Al.
- **Court:** Indiana Supreme Court
- **Decided:** December 1, 1950
- **Citations:** 229 Ind. 3; 95 N.E.2d 556; 1950 Ind. LEXIS 96
- **Precedential status:** Published
- **Opinion:** Concurrence by Gilkison
- **Judges:** Young, Gilkison, Emmert
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part by State v. Lindsey, 231 Ind. 126 (1952).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9541007

## Opinion text

CONCURRING OPINION
Gilkison, J.
I concur in the result reached by the majority opinion, but I think some clarification is required.
It will be observed that this is an original action for a writ to prohibit the trial court from proceeding further with the trial of a coram nobis proceeding pending before it. The sole reason, stated in the petition, for the issuance of the writ is that “. . . The Blackford Circuit Court has no jurisdiction to hear and determine issues raised by Defendant’s Motion; *18 nor does the Blackford Circuit Court have jurisdiction to afford the relief prayed for by the defendant.” This alleged want of jurisdiction is based upon the averment that the trial court had overruled appellant’s demurrer to the petition for writ of error coram nobis—the demurrer being based solely on the grounds that the court was without jurisdiction of the action because more than five years had elapsed between the date of the judgment and the date of the filing of the coram nobis petition. This alleged lack of jurisdiction is based wholly upon §§ 9-3301 to 9-3307 inclusive, Burns’ 1942 Replacement (1949 Supp.) ; Acts 1947, ch. 189, p. 625. In this original action this court is not concerned with the correctness or incorrectness of the ruling of the trial court on the demurrer. That ruling could be considered by this court only on appeal. An original action cannot serve the mission of an appeal. State ex rel. Zeller v. Montgomery Circuit Court (1945), 223 Ind. 476, 484, 486, 489 , 62 N. E. 2d 149 .
Of course, a circuit court has jurisdiction of a coram nobis proceeding filed in a case that it has theretofore tried and decided, unless it has lost jurisdiction thereof by reason of the lapse of time as provided in §§ 9-3301 to 9-3307 inclusive, Burns’ 1942 Replacement (1949 Supp.), supra. Among other things it provides:
“Any defendant, after conviction in any criminal matter or cause, shall be presumed to have waived his right to institute any proceeding for a writ of error coram nobis after the lapse of five (5) years from time of judgment of conviction, and no court shall have jurisdiction to entertain any such proceeding for writ of error coram nobis after said lapse of time, and any court attempting to entertain jurisdiction in violation of this section may be prohibited by a writ of prohibition from so assuming jurisdiction: . . .” §9-3301 Burns’ 1942 Replacement (1949 Supp.).
*19 Our government, both state and national, has always recognized that every human being is endowed by the Creator “with certain unalienable rights.” Among these Creator-given rights is the right to liberty. The right to liberty is born with the person; lives with the person and dies only with the person. It is a right that by nature is always with the person. He cannot voluntarily rid himself of it while he lives. Neither Presidents, Congresses, Governors, Legislatures, nor courts can interfere with the Creator-given right of liberty. Neither the constitution of the state or nation, so long as they remain republican in form, can possibly destroy, limit, curtail or reduce this right—except “for the punishment of crimes, whereof the party shall have been duly convicted.” Art. 1, § 37 Ind. Const.—for it comes from a source that immeasurably transcends all other authorities. Bradley and Taylor v. State (1949), 227 Ind. 131, 136 , 84 N. E. 2d 580 . Art. 1, § 1 of the Indiana Constitution is but declaratory of the superlative quality of this and other unalienable rights. Scott v. McNeal (1894), 154 U. S. 34, 45 , 38 L. Ed. 896, 901 ; Ex Parte Milligan (1866), 4 Wall. (71 U. S.) 2, 119, 121, 18 L. Ed. 281, 295 .
Among other things our State Constitution provides:
“In all criminal prosecutions, the accused shall have a right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; . . .” Art. 1, §13 Indiana Constitution.
It further provides:
“All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.” Art. 1, § 12 Indiana Constitution.
*20 Among other things our United States Constitution provides:
“. . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; . . .” Amendment 14, United States Constitution.
The right of a defendant charged with crime to be represented by competent counsel is unquestionable in Indiana. Bradley and Taylor v. State (1949), 227 Ind. 131, 135 , 84 N. E. 2d 580 , supra, and cases there cited. “If he is not financially able to employ an attorney of his own choice, it is the duty of the court to select a competent attorney for him at public expense, whether the defendant requests it or not.” Under our constitution there can be no valid trial of a criminal case unless a defendant has been offered, and if so desired, provided with adequate counsel; a judgment rendered in a case where this has not been done is void. Bradley and Taylor v. State (1949), 227 Ind. 131, 136 , supra, and cases there cited. Knox County Council v. State ex rel. McCormick (1940), 217 Ind. 493, 497, 510, 511 , 29 N. E. 2d 405 . On this proposition the Supreme Court of the United States has held and it remains the law in that jurisdiction, that
“If the accused, however, is not represented by Counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court’s jurisdiction at the beginning of the trial may be lost ‘in the course of the proceedings’ due to failure to complete the court— as the Sixth Amendment requires—by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty *21 is at stake. If this requirement of the Sixth Amendment is. not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus” Johnson v. Zerbst (1938), 304 U. S. 458, 468 , 82 L. Ed. 1461, 1468 .
The protection guaranteed to a defendant charged with crime in the United States Courts by the Sixth Amendment referred to, is guaranteed to a defendant charged with crime in the State Courts of Indiana by Aft. 1, § 13 of the Constitution of Indiana, supra. Knox County Council V. State ex rel. McCormick (1940), 217 Ind. 493, 497, 510 , supra.
If a federal court denying or failing to give any of these constitutional rights to a defendant loses jurisdiction of the cause thereafter so that a judgment rendered in the cause is void; a judgment rendered by a state court after denying, or failing to give a defendant in a criminal case the benefit of counsel as provided by the Constitution of the state of Indiana noted, likewise must be void. Knox County Council v. McCormick, supra; Suter v. State (1949), 227 Ind. 648, 657 , 88 N. E. 2d 386 . A judgment void when rendered remains void forever. There is no governmental power, short of deity, that can endue it with life. See Bradley and Taylor v. State, supra. The state is without power by statute to devise a plan whereby the constitutional rights of a person may be presumed to be waived. Knox County Council v. State ex rel. McCormick (1940), 217 Ind. 493, 510, 511 , supra; Haden v. Dowd, Warden (1939), 216 Ind. 281, 284, 285 , 23 N. E. 2d 676 and cases cited. It would be a stark contradiction to grant the person the liberty-rights contained in the Bill of Rights of our state constitution and then permit the *22 state by statute to waive these rights for him. “It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ ” Johnson v. Zerbst, supra, (Headnote 1, p. 1466 Law. Ed.). It is equally true that the legislature may not lawfully devise a plan whereby the right of a defendant to assert such rights “shall be presumed” to have been waived. There never can be such presumption.
In the case at bar the relators do not contend that the accused has ever waived his constitutional rights heretofore noted. The contention is that his rights are barred and waived by the statute noted, §§ 9-3301 to 9-3307 inclusive, Burns’ 1942 Replacement (1949 Supp.), supra, and that the jurisdiction of the trial court to hear the case is destroyed by this statute. This contention raises some interesting questions that are adequately refuted by their mere statement, (1) Can the legislature by the enactment of a law take away from a person any of the liberty-rights guaranteed by the Bill of Rights (Art. 1, §§ 1 to 37 inclusive) of the Indiana Constitution? (2) Can the legislature by the mere enactment of a law destroy the right and duty of a court, created by the constitution, to hear and determine those rights when presented to it in a proper action? Each of these questions must be answered in the negative. While the legislature has a wide field in which it may enact laws (Art. 4 Indiana Constitution) this field is always limited by the constitution. The laws must always be within the framework of that all-controlling, basic document. Ellingham v. Dye (1912), 178 Ind. 336 , 342 et seq., 99 N. E. 1 , 3 Ann. Cases 1915C 200; In Re Denny (1901), 156 Ind. 104, 108 , 59 N. E. 359, 360 , 51 L. R. A. 722; Ex Parte Milligan (1866), 4 Wall. (71 U. S.) 2, 119, 121, 18 L. Ed. 281, *23 295 , supra; Sadler v. Langham (1859), 34 Ala. 311, 329 , quoted with approval in Banks v. State (1921), 207 Ala. 179 , 93 So. 293, 296 , 24 A. L. R. 1359, 1363; see also Dissent, State ex rel. Cline v. Schricker, Governor et al. (1950), 228 Ind. 41 , 88 N. E. 2d 746 , 89 N. E. 2d 547 .
The statute §§ 9-3301 to 9-3307 inclusive, Burns’ 1942 Replacement (1949 Supp) ; Acts 1947, ch. 189, p. 625, supra, in so far as it seeks to destroy, reduce, curtail or limit the right of a person to assert his rights under the Bill of Rights of the Indiana Constitution, and in so far as it seeks to destroy, reduce, curtail or limit the jurisdiction of courts in the determination and enforcement of such rights when brought before them in an appropriate action, is unconstitutional and void, being in violation of Art. 1, §§ 1, 12 and 13, Indiana Constitution and the 14th Amendment of the United States Constitution. Statutes facilitating the enforcement of such rights would be proper, but those limiting such rights as to the time of asserting them or otherwise are void. Necessarily, these rights are attached to the person at birth and they live and die with him. “A constitution is legislation direct from the people, acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority.” Ellingham v. Dye (1912), 178 Ind. 336, 345 , supra.
The temporary writ of prohibition issued herein should be vacated and a permanent writ should be denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9541007. Public record. Not legal advice.