Dissenting Opinion
Gilkison, J.Dissenting.
I am unable to agree with the majority opinion for the following reasons:
As shown by the opinion appellant was adjudged guilty of auto banditry and sentenced to prison for ten years.
The opinion further states that the pauper attorneys appointed by the court consulted with appellant, but, quoting from the opinion:
“The actual periods of conversation between the • pauper attorneys and appellant took about ten minutes.”
The appellant was charged with robbery and auto *544banditry, the minimum penalty for the latter is ten years in prison. Sec. 10-4710, Burns’ 1942 Repl.
I do not think the lawyer has ever lived who could discharge his duties to a client so charged, by consulting with him for only ten minutes. The ten minute consultation with their client by the pauper attorneys conclusively shows that they were rendering merely perfunctory service, attempting to supply the requirements of due process but doing nothing for their client whatever. This is the shortest period of consultation, to be found in the books. The opinion attempts to excuse this excessive lethargy thus:
“True a total of only ten minutes seems very little. But what more could they learn from him in a longer time? He says he is guilty, he has made a statement, look at it and you get the detailed facts. What.more is there to learn?”
The opinion seems to admit that appellant’s guilt or innocence was not in issue in the case, and with this position I agree. But the opinion at least eight times states that appellant is guilty, and these statements are made as an excuse for the violation of fundamental rights. I am unable to agree that the guilt of the appellant, either assumed or real, is an excuse or justification for not granting him “due course” and “due process” of law. See dissents: Schmittler v. State (1950), 228 Ind. 450, 469 to 486, 93 N. E. 2d 184; State v. Lindsey and Carroll (1952), 231 Ind. 126, 134, 106 N. E. 2d 230. See Instructive Comment: 26 Ind. Law Journal, pp. 535 et seq; 26 Notre D. L. J. 118 to 122; Abraham v. State (1950), 228 Ind. 179, 184, 91 N. E. 2d 358.
■ I do not think it matters in the least whether an explanation of all his legal rights would have helped him, nor whether we are able to discover that it would or would not have done so. The only question for us *545to determine is: Were these rights explained to him? If they were not explained to him he has not had due process. Appellant had no burden to show that the explanation of these rights would have helped him, nor that the failure to make such explanation could have harmed him.
The purpose of coram nobis is neither to help nor harm a defendant, but is to afford him due course of law agreeable with the Constitution of Indiana, Art. 1, Secs. 12 and 13, and due process of law agreeable with Sec. 1, of the Fourteenth Amendment. When a defendant prevails in a coram nobis case, he is allowed a trial and this may result either in his conviction or acquittal.
I would reverse this judgment, that the appellant may have the due process vouchsafed to everyone who is charged with crime.
Note. — Reported in 121 N. E. 2d 874.