DISSENTING OPINION
Emmert, J.—It is natural that there should be diverging opinions on the right to counsel under § 13 *24of Article 1 of the Constitution of Indiana and the due process clause of the Fourteenth Amendment when the construction of these provisions becomes necessary in determining whether the particular facts involved in a case for review constitute a violation of the right to counsel. The right to counsel is of itself self-executing, and it should be liberally enforced. Beard v. State (1949), 227 Ind. 717, 88 N. E. 2d 769; Abraham, et al. v. State (1950), 228 Ind. 179, 91. N. E. 2d 358. In fact it should be more liberally enforced than it has at many times in the past several years. See concurring opinion Hoy v. State (1947), 225 Ind. 428, 75 N. E. 2d 915; dissenting opinions in Todd v. State (1948), 226 Ind. 496, 81 N. E. 2d 530, 784, 82 N. E. 2d 407; Johns v. State (1949), 227 Ind. 737, 89 N. E. 2d 281; Schmittler v. State (1950), 228 Ind. 450, 93 N. E. 2d 184. But in each of these cases the claim was seasonably made so that the state would not be prejudiced by reason of death or absence of witnesses, loss of exhibits or loss of memory of the witnesses when the judgment was vacated and a trial ordered. It would seem, in view of the recent history of the right in Indiana, that this court has strained at a gnat, while in this appeal it has swallowed the camel.
The constitutional right to representation by counsel is one that may be waived by an accused. Hoelscher v. State (1944), 223 Ind. 62, 57 N. E. 2d 770; Wood v. Howard (1946), 157 F. 2d 807; Gryger v. Burke (1948), 334 U. S. 728, 68 S. Ct. 1256, 92 L. Ed. 1683. If the right may be waived in the first instance, it would logically follow that after conviction he could waive the right to bring an action to enforce his right to representation by counsel. A remedy as well as a right may be waived.
A certified copy of the prisoner’s petition for writ of error coram nobis filed in the trial court shows that *25he pleaded guilty to an affidavit charging larceny on August 31, 1943, and upon arraignment pleaded guilty. The verified petition for the writ of prohibition discloses that he was sentenced for a term of from one to ten years at the Indiana Reformatory, but that the sentence was suspended. At the time the prisoner was 19 years of age. On June 9, 1944, the suspended sentence was revoked, but on July 9, 1945, he was again paroled, which parole was revoked on June 21, 1949. On April 27, 1950, the petition for the writ of error coram nobis was filed. Thus it is disclosed that after he was first convicted he was not in any penal institution for a total period of more than four years.
The evils and abuses of unrestrained attempts to vacate judgments in criminal cases are well known to this court, and presumably were well known to the General Assembly when it enacted ch. 189 of the Acts of 1947, § 9-3301 et seq., Burns’ 1942 Replacement (1949 Supp.). In State ex rel. Emmert v. Hamilton Circuit Court (1945), 223 Ind. 418, 61 N. E. 2d 182, this court noted that David C. Stephenson in his petition for writ of error coram nobis filed in the Hamilton Circuit Court admitted he had instituted 39 proceedings to obtain his liberty during the 19 years of his imprisonment, which included six petitions for writs of error coram nobis, and nine habeas corpus actions “ ‘all but one of which he states were on the same subject matter.’ ” In 1946 the Attorney General of Indiana reported to the Conference of Attorneys General that, during a period of four years, of approximately 163 proceedings instituted by prisoners to vacate their judgménts only eleven had any merit whatsoever, and only three were lost in the Federal courts on constitutional grounds. Proceedings of the Conference of the National Association of Attorneys General 1946, p. 56. Obviously the courts of this state *26as well as the Federal District Courts were being subjected to a multiplicity of fictitious petitions based upon false swearing or perjury. Section 7 of ch. 189 of the 1947 Acts attempted to provide a deterrent for this wholesale perjury by providing that it should be considered bad conduct for which the prisoner should be deprived of good time when his case came up for parole.
The evils which the act sought to correct were very similar to those experienced by the Federal courts. In Diggs v. Welch (1945), 148 F. 2d 667, the court said concerning the abuse of habeas corpus: “It is well known that the drafting of petitions for habeas corpus has become a game in many penal institutions. Convicts are not subject to the deterrents of prosecution for perjury and contempt of court which affect ordinary litigants. The opportunity to try his former lawyer has its undoubted attraction to a disappointed prisoner. In many cases there is no written transcript and so he has a clear field for the exercise of his imagination. He may realize that his allegations will not be believed but the relief from monotony offered by a hearing in court is well worth the trouble of writing them down.” (Pages 669, 670.) In Dorsey v. Gill (1945), 148 F. 2d 857, 862, the Court of Appeals for the District of Columbia again noted the abuses as follows: “Today, in the District of Columbia, we find a similar contrast. Here, petitions for the writ are used not only as they should be to protect unfortunate persons against miscarriages of justice, but also as a device for harassing court, custodial and enforcement officers with a multiplicity of repetitious, meritless requests for relief. The most extreme example is that of a person who, between July 1939 and April 1944, presented in the District Court 50 petitions for writs of habeas corpus; another person has presented 27 *27petitions, a third 24, a fourth 22, a fifth 20. One hundred nineteen persons have presented 597 petitions —an average of 5.”
Section 1 of ch. 189 of the 1947 Acts, § 9-8301, Burns’ 1942 Replacement (1949 Supp.), which in substance provides that after a lapse of five years from the time of the judgment of conviction the defendant shall be presumed to have waived his right to institute a proceeding for a writ of error coram nobis, was enacted after the decision in Irwin v. State (1942), 220 Ind. 228, 41 N. E. 2d 809, and after the enactment of ch. 38 of the 1945 Acts, § 13-1401 et seq., Burns’ 1942 Replacement (1949 Supp.), which created the oiliee of Public Defender whose duty under § 13-1402, Burns' 1942 Replacement (1949 Supp.), is to “represent any person in any penal institution of this state who is without sufficient property or funds to employ his own counsel, in any matter in which such person may assert he is unlawfully or illegally imprisoned, after his time for appeal shall have expired.” The time for appeal means the regular time for appeal under Rule 2-2 of this court.
If the judgment of conviction had been based upon a verdict or finding of guilty after trial § 9-3305, Burns’ 1942 Replacement (1949 Supp.) ; Acts 1947, ch. 189, § 5,1 would still provide a remedy by a delayed appeal. Sweet v. State (1948), 226 Ind. 566, 81 N. E. 2d 679, declared that before the enactment the Supreme Court had the inherent right to permit delayed appeals. In Payton v. State (1950), 228 Ind. 577, 94 N. E. 2d 592, *28this court declared the procedure in' filing a delayed motion for new trial before attempting to take a delayed appeal.2 It should be noted that under Rule 2-6 as now amended, which became effective November 30, 1949, the motion for new trial may raise any error relied upon which occurred up to the time of filing said motion.
There can be no question that where the appeal is from a judgment of conviction after trial the prisoner has his remedy. All the Fourteenth Amendment requires is that the state provide some corrective' judicial process for the violation of rights under the Fourteenth Amendment. Mooney v. Holohan (1935), 294 U. S. 103, 55 S. Ct. 340, 79 L. Ed. 791, 98 A. L. R. 406. In Carter v. Illinois (1946), 329 U. S. 173, 175, 176, 91 L. Ed. 172, 175, 67 S. Ct. 216, 219, it is said:
“. . . Wide discretion must be left to the States for the manner of adjudicating a claim that a conviction is unconstitutional. States are free to devise their own systems of review in criminal cases. A State may decide whether to have direct appeals in such cases, and if so under what circumstances. McKane v. Durston, 153 U. S. 684, 687, 38 L. Ed. 867, 868, 14 S. Ct. 913. In respecting the duty- laid upon them by Mooney v. Holohan, States have a wide choice of remedies. A State may provide that the protection of rights granted by the Federal Constitution be sought through the writ of habeas corpus or coram nobis. It may use each of these ancient writs in its common law. scope or it may put them to new uses; or, it may afford remedy by a simple motion brought either in the court of original conviction or at the place of detention.”
*29Section 9-3301, Burns’ 1942 Replacement (1949 Supp.), provides that the five year period of waiver should be extended by the length of time any prisoner should be prevented from instituting a proceeding for writ of error coram nobis or during the time he may have been insane. There may be other cases where this court, in order to protect the constitutional rights of a defendant should extend the time, but certainly the prisoner Furnish has presented no reason for extending the period. The burden was on him to plead facts showing (1) cause for vacating the judgment, and (2) facts showing why he has not waived his right under the statute. Gryger v. Burke (1948), 334 U. S. 728, 68 S. Ct. 1256, 92 L. Ed. 1683, supra.
The petition in the trial court fails to state that during the time he was not in the Indiana Reformatory he was without money, means or income with which to employ counsel to advise him as to his legal rights. It fails to state that during the time he was an inmate of the Indiana Reformatory he did not know that the state had provided him with the services of a Public Defender to represent him if indigent, or that if he did know there was a Public Defender he made any effort whatever to contact him. During the time the sentence was suspended and during the time he was on parole he was apparently willing enough to accept the leniency of the state without attempting to vacate the judgment. From the day of the entry of judgment on his plea of guilty he certainly knew that a sentence of imprisonment from one to ten years had been suspended, and from the time of the revocation of his suspended sentence, which was less than a year after he had pleaded guilty, he had to know that his imprisonment might extend to the maximum amount. He does not charge that the state by any of its agents prevented him from attacking the judgment while he *30was incarcerated in the Reformatory, and he does not charge any mental incapacity at any time. Before he was put in the Reformatory the second time he was at perfect liberty to consult with any lawyer he chose concerning the validity of his original sentence. His allegation that he acted with “due diligence” is a mere conclusion and not a statement of fact, and his allegations attempting to show he did not waive the right or remedy are so preposterous that as a matter of law they should be disregarded.3 It is true he attempts to state that the state now has available all the witnesses and all the evidence it had on August 31, 1943, as to the commission of the alleged offense, but his petition fails to charge that the state has available all the witnesses who may know anything about whether or not he intelligently waived the right to representation by counsel, or that their memory is undimmed on those matters by the lapse of time, nor is there any statement that the judge who accepted his plea of guilty is living and available to hear his petition for the writ of error coram nobis.
The case of Woods v. Nierstheimer (1946), 328 U. S. 211, 216, 66 S. Ct. 996, 999, 90 L. Ed. 1177, 1181, is no authority for the position of the majority. The court refused to pass upon the five year statute of limitations for bringing a proceeding for writ of error coram nobis in the Illinois courts in the following language:
“Nor can we at this time pass upon a suggestion that the Illinois statute so construed would itself violate due process of law and that a denial of that remedy together with the denial of the writ of *31habeas corpus, would, taken together amount to a deprivation of a state remedy where Constitutional rights have been denied. We would reach that question only after denial of the statutory substitute for the writ of error coram nobis based on the statute of limitations had been affirmed by the Supreme Court of the state.”
Certainly it cannot be contended that the Indiana five year statute of waiver does “at all times deny all remedies to individuals imprisoned within the state in violation of the Constitution of the United States.” The prisoner at any time within the period could have brought his proceeding to vacate the judgment. But here he was apparently pleased enough to accept the benefits of the suspended sentence, and even the parole granted when the suspended sentence was revoked, and it was only after he became dissatisfied with his imprisonment under the revocation of his parole that he moved to vacate the judgment.
The case of Paterno V. Lyons (1948), 334 U. S. 314, 318, 319, 68 S. Ct. 104, 92 L. Ed. 1409, 1414, is analogous to the case presented by this original action. On April 14, 1937, Paterno had been permitted to plead guilty to a reduced charge of attempted grand larceny second degree in the Erie County Court of New York, upon which he received a suspended sentence of from fifteen to thirty months. He was discharged from probation on December 1, 1938. On November 17, 1941, Paterno was indicted by the grand jury of Chautauqua County for the crime of robbery in the first degree. Thereafter, as a second offender, he was sentenced for a term of not less than fifteen nor more than thirty years. On December 27, 1945, he sought to vacate the first conviction by a proceeding “in the nature of coram nobis.” On appeal to the Supreme Court of the United States he contended that *32the state of New York had failed “to give him an available remedy and so denied him due process of law.” The court, speaking by Mr. Justice Black, said:
“Petitioner next argues that the State has failed to supply him an available remedy to attack. the judgment against him and that such a failure denies him due process of law guaranteed by the Fourteenth Amendment. See Mooney v. Holohan, 294 U. S. 103, 113 (79 L. Ed. 791, 794, 55 S. Ct. 340, 98 A. L. R. 406). But his contention falls with its premise. Petitioner, within the periods prescribed by New York statutes, could have challenged any alleged errors of state law either by filing a motion to withdraw his plea of guilty, or a motion in arrest of judgment, or by taking a direct appeal from the original judgment. Certainly in the absence of any showing that petitioner was without an opportunity effectively to take advantage of these corrective remedies to challenge purely state questions such remedies are adequate from a due process standpoint. See Parker v. Illinois, 333 U. S. 571 (92 L. Ed. 886, 68 S. Ct. 708) ; American Surety Co. v. Baldwin, 287 U. S. 156, 169, and cases cited n. 6 (77 L. Ed. 231, 239, 53 S. Ct. 98, 86 A. L. R. 298).”
It is impossible for me to understand how the prisoner here has pleaded facts showing that he did use diligence in bringing his action. It seems to me that not only has the majority opinion overruled Pembleton v. McManaman (1949), 227 Ind. 194, 84 N. E. 2d 889, and State ex rel. Hunter v. Murray (1950), 228 Ind. 93, 89 N. E. 2d 539, but it has also overruled Irwin v. State (1942), 220 Ind. 228, 41 N. E. 2d 809. In the Irwin case the court held that prisoners, who filed for the writ of error coram nobis more than four years after they had pleaded guilty, had failed to use diligence and were not entitled to a review of the judgment. .The court, in speaking of the burden put *33upon the state by permitting prisoners to institute such proceedings many years after conviction, said:
“The State must assert its cause of action against the defendant within a limited time; and after judgment, especially upon a plea of guilty, it has a right to assume that the transaction is closed and settled, and to rely upon finality of the judgment. There is no apparent reason for longer preserving evidence and keeping contact with witnesses. Law enforcement and judicial officers change, and the State is put to a disadvantage if an unexpected trial should be made _ necessary. These considerations should not in justice cause a disadvantage to the judgment defendant until he has knowledge of the facts and a reasonable opportunity to seek relief, but if he should thereafter wilfully delay the assertion of his rights to the further disadvantage of the State, and to his own advantage, the result may often be not the granting of a trial to the defendant, but the practical denial of an opportunity for the State to prosecute its action.” (PP. 241, 242.)
In the Irwin case, supra, the court took judicial notice that prisoners were not held incommunicado by the following language:
“It is commonly known that prisoners in the state prison have the privilege of writing letters and communicating with their families and friends and with courts and public agencies, and that they have the privilege of receiving visitors on stated occasions.” (P. 244.)
Nor should we fail to mention the great number of letters and petitions we received from prisoners, convicted of felonies, asserting they have been denied their constitutional rights. Scarcely a day goes by without this court having received one or more such papers, and if there is any one thing they do know it is that they have the right to counsel, both- under *34the Indiana Constitution and due process clause of the Fourteenth Amendment. They are well aware of the fact we have a Public Defender to represent those that are indigent. In recent years we have never received any complaint from the Indiana Reformatory that the prisoners have been denied visitors, counsel or leave to file petitions to vacate their judgments, and we cannot assume that the prisoners there do not have general knowledge of their constitutional rights. See Johns v. State (1949), 227 Ind. 737, 89 N. E. 2d 281; Schmittler v. State (1950), 228 Ind. 450, 93 N. E. 2d 184. The question of diligence is not always a question of fact. It is a mixed question of law and fact like negligence. When the facts are admitted, and when reasonable men can draw but one inference, diligence becomes a question of law.
It is difficult to see how the reasoning of the majority in this original action can be consistent with the reasoning of the majority in Johns v. State (1949), 227 Ind. 737, 89 N. E. 2d 281. In that case the prisoner was arrested the 22nd day of August, 1946, and filed his petition for writ of error coram nobis on the 23rd day of March, 1949. His counsel had overlooked the limitation of Rule 2-40 which limits the taking of an appeal to thirty days after the order denying the petition for the writ of error coram nobis. The majority held that this court had no jurisdiction of the appeal. If this court by its rules can constitutionally place a reasonable time limitation on the right to review, which is part of the remedy, it would seem to follow that the legislature by statute could also place a reasonable rule limiting a remedy.
Instead of seeking ways to overthrow legislation, this court should presume legislation valid until it is clearly shown unconstitutional. When this court denies *35the General Assembly its power to correct evils, even on procedure, which common sense recognizes as dangerous to the security of society, it asserts for itself the power of a judicial tyranny.
The effect of § 9-3301, Burns’ 1942 Replacement (1949 Supp.) is to create a prima facie presumption that the prisoner can waive his constitutional right to review the action of the trial court. 22 Ind. L. J., p. 394. The presumption created by the statute has every reasonable basis in fact and in experience as well as common sense. Tot v. United States (1943), 319 U. S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519. The prisoner must plead facts to escape the effect of this presumption, which he has not done in this case. Mere assertion that he did not learn of his constitutional right until after the five years is incredible as a matter of law. It was within the power Of the General Assembly to provide that this court have original jurisdiction in such a case. Article 7, § 4, Constitution of Indiana.4
The temporary writ should have been made permanent.
Note.—Reported in 95 N. E. 2d 556.
“The Supreme Court of Indiana may, for good cause shown, under such rules as it may adopt or under such orders as it may make in a particular case, permit appeals from a judgment of conviction after the original time for taking an appeal has elapsed.” Section 9-3305, Burns’ 1942 Replacement (1949 Supp.) ; Acts 1947, ch. 189, § 5.
“The petitioner in this cause must file his petition for permission to file a motion for a new trial in the Vigo Circuit Court, so that such petition may be heard and determined by the trial "court. Until this is done, this court cannot entertain a petition for a belated ' appeal.” Payton v. State (1950), 228 Ind. 577, 579, 94 N. E. 2d 592, 593.
“It rather overstrains our credulity to believe that one who had been a defendant eight times and for whom counsel had twice waged defenses, albeit unsuccesssful ones, did not know of his right to engage counsel.” Gryger v . Burke (1948) 334 U. S. 728, 730, 68 S. Ct. 1256, 1257, 92 L. Ed. 1683, 1686.
. . It shall also have such original jurisdiction as the General Assembly may confer.” Art. 7, § 4, Constitution of Indiana.