DISSENTING OPINION The danger of a court of review deciding cases contrary to well established precedent and principle is always imminent, and for that reason must be watched constantly if we would avoid the making of personalized law, which would be as changing as the changing personnel of the court. We should shun making the judiciary a governmental department of men and not of laws. This does not mean that our declaration of the common law should be as immutable as the laws of the Medes and Persians, for the rule ofstare decisis is subject to the exception, based upon superior precedents holding that, when the reason for the rule ceases, the rule should cease. A fortiori, when there never was any reason for the rule in the beginning, it should be overruled. Our Bill of Rights, as well as the due process clause of the Fourteenth Amendment, are the *Page 470 very negation of the philosophy that the end justifies the means, which is always the excuse used to establish or perpetuate the despotism of government. It destroys "equal justice under law." It is an unpleasant duty to note that the well established precedents of this court, based upon sound existing reason, no longer mean anything to this court. Nor for that matter do decisions of the Supreme Court of the United States mean anything, although we are bound to follow them as the supreme law of the land. This court should remember the history of the final disposition of the constitutional issue involving denial of representation by counsel in Todd v. State (1948),226 Ind. 496, 81 N.E.2d 530, 81 N.E.2d 784. In an opinion by the writer of the prevailing opinion in the present appeal, which was concurred in by another member of the court who now concurs in denying relief to appellant, it was held the judgment of the trial court should be affirmed. Both members of the court who now dissent, by separate dissenting opinions called attention to the denial of the constitutional right to representation by counsel. Todd then filed his petition for a writ of habeas corpus in the United States District Court for the Northern District of Indiana. That court by memorandum opinion of September 26, 1949, properly held the judgment of conviction was void, since Todd had been denied his constitutional right to representation by counsel.1
Appellant's assignment of error, "That the order of the court denying appellant's petition for writ of error coram nobis is contrary to law," complies with Rule 2-40. The cases cited and discussed consider the denial *Page 471 of appellant's constitutional rights to adequate and competent representation by counsel, both under Section 13 of Article 1 of the Constitution of Indiana, and the due process clause of the Fourteenth Amendment, and I cannot escape the conclusion that he was denied his constitutional rights under both provisions.
As late as December 1, 1949, this court in Beard v. State,227 Ind. 717, 88 N.E.2d 769, said, in passing upon denial of a constitutional right:
"Although on appeal this court presumes the action of the trial court was correct, undisputed facts will be taken as true, and as said by Myers, C.J. in Atkinson v. State (1920), 190 Ind. 1, 6, 128 N.E. 433, 434: `. . . the only course open to us is to pronounce judgment of law upon these facts.' See also Batchelor v. State (1920), 189 Ind. 69, 125 N.E. 773; Sanders v. State (1882), 85 Ind. 318, 44 Am. Rep. 29, supra." (p. 770)
Each of the three judges of the present majority opinion concurred without qualification.
On March 28, 1950, in Abraham et al. v. State,228 Ind. 179, 91 N.E.2d 358, this court declared the applicable law as follows:
"The petition for the writ was placed at issue by the state filing an answer in general denial. At the hearing the verified petition was introduced in evidence and oral evidence was heard. Upon review of the evidence we do not weigh conflicting evidence nor determine the credibility of witnesses, but uncontradicted statements of fact in behalf of the petitioners will be taken as true. Sanders v. State (1882), 85 Ind. 318, 44 Am. Rep. 29; Myers v. State (1888), 115 Ind. 554, 18 N.E. 42; Dobosky v. State (1915), 183 Ind. 488, 109 N.E. 742; Batchelor v. State (1920), 189 Ind. 69, 125 N.E. 773; Bielich v. State (1920), 189 Ind. 127, 126 N.E. 220; Cassidy v. State (1929), 201 Ind. 311, 168 N.E. 18, 66 A.L.R. 622; Kuhn v. State (1944), *Page 472 222 Ind. 179, 52 N.E.2d 491; Beard v. State (1949), 227 Ind. 717, 88 N.E.2d 769.
"Upon the undisputed facts it becomes our duty to apply the law to the facts. Atkinson v. State (1920), 190 Ind. 1, 128 N.E. 433; Vonderschmidt v. State (1948), 226 Ind. 439, 81 N.E.2d 782. Our practice in this respect is in accord with the federal rule. Powell v. Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; White v. Ragen (1945), 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; Tomkins v. Missouri (1945), 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407; Williams v. Kaiser (1945), 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Hawk v. Olson (1945), 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61; Watts v. Indiana (1949), 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801."
In this case two judges did not participate, but one judge who now joins in the majority opinion, concurred without qualification. The principles involved in the present appeal are no different than the Abraham case.
The majority opinion concedes that appellant's allegations that he had no opportunity to confer with his counsel concerning the facts of his alleged offense and possible defenses thereto were not denied by the state, but reasons that the trial court was not bound to take these uncontradicted allegations of fact as true. There was no oral testimony given at the hearing. The majority opinion opens wide the door to the denial of every constitutional right which depends upon evidence for proof. Constitutional rights cease for want of a remedy.
The true cause for the result of the majority opinion is contained in its statement in the following language:
"As to whether the record reveals that appellant was not adequately represented, it would appear to us that the appellant was guilty as charged. He does not assert otherwise." *Page 473 In the first place, the petitioner in rhetorical paragraph 10 of the verified petition, which was introduced in evidence, states:
"The petitioner would show to the Court that he is not guilty of the offense for which he stands convicted and sentenced upon his plea of guilty, for the reason that he did not `unlawfully, feloniously and burglariously' enter into the Mobil Filling Station of Howard J. Strickland in New Harmony, Indiana on or about the 28th day of March 1949 or upon any other date. That at most, petitioner could have been convicted of larceny in connection with the alleged theft of the goods of said Howard J. Strickland, and the conviction of this petitioner of said offense would be extremely doubtful in view of the illegal search of petitioner's automobile without a search warrant by the State Police officers as herein stated, the evidence thereby obtained being rendered not admissible for the failure of said officers to search said vehicle under a valid search warrant."
The decisions of this court as well as the Supreme Court of the United States have clearly held that the constitutional safeguards were for the protection of the guilty as well as the innocent. Judge Lairy in Batchelor v. State (1920),189 Ind. 69, 84, 85, 125 N.E. 773, 776, with unanswerable logic, said:
"It is suggested that the motion for leave to withdraw the plea and to be permitted to plead not guilty does not allege that appellant was innocent of the crime charged or that the crime was committed under such circumstances as would not justify the infliction of the extreme penalty of the law. The burden of making such a showing did not rest on appellant; it is enough for him to show that he was denied a right to which he was entitled under the Constitution. Our law is no respecter of persons. The rights of just and upright citizens are not more sacred in the eyes of the law than the rights of the poorest and meanest citizen of the state. The safeguards erected by the Constitution *Page 474 are intended to protect the rights of all citizens alike. They protect the rights of the guilty as well as those of the innocent. The court cannot give its sanction to the conviction of any person accused of crime where the proceedings on which the judgment is based show the denial of a right to which the defendant was entitled under the Constitution. Such judicial sanction, in any case, would destroy the efficacy of the constitutional safeguards to protect the rights of all citizens of the state."
And until the Supreme Court of the United States overrules the reasoning of Ex parte Quirin (1942), 317 U.S. 1, 25, 63 S.Ct. 2, 9, 87 L.Ed. 3, 11, under the due process clause of the Fourteenth Amendment, we are bound to follow the law as therein stated by Chief Justice Stone that, "Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty. Ex parte Milligan, supra, 119, 132; Tumey v.Ohio, 273 U.S. 510, 535; Hill v. Texas, 316 U.S. 400, 406."
The holding of the majority that appellant had it peculiarly within his power to produce as a witness his attorney whose conduct he has attacked, and that his failure to do so justifies an inference against appellant, is contrary to prior precedents of this court and wholly fallacious. In Dodd v. Reese (1940),216 Ind. 449, 24 N.E.2d 995, 128 A.L.R. 574, this court properly held, that in a proceeding to set aside a judgment of adoption upon the ground that it was obtained by fraud participated in by the attorney for the adopter, that the attorney, although not made a party to the proceedings to set aside the judgment, had such an interest in protecting his professional reputation that it was error to overrule his petition to intervene as an adverse party, and that granting him the privilege to appear as amicuscuriae did not cure the error. *Page 475
Of course when a convicted defendant files a petition for writ of error coram nobis in which he attacks the professional conduct of his attorney on the ground that he was denied adequate and competent representation by counsel, the confidential privilege of his communications made to his counsel is waived just the same as the competency of a physician to testify as to the privileged communications is waived when the patient institutes an action for malpractice. This principle is squarely decided in Fluty v.State (1947), 224 Ind. 652, 71 N.E.2d 565, in a learned opinion by my brother Gilkison. The court there said:
"A majority of the court believe that the filing of this coram nobis action in the trial court was a direct attack against the professional integrity of the attorney, and gave him a right to defend his conduct as appellant's attorney. There can be no doubt, however, that when appellant took the witness stand and himself testified as to his recollections concerning the confidential communications between himself and his attorney, he thereby destroyed the confidential nature of the communications and by that act consented that the attorney might be a witness concerning the confidential matters that he, himself, had testified about. . . ." (pp. 658, 659.)
Appellant's counsel would have been an adverse witness, and if the state wished to deny appellant's uncontradicted allegations of fact with reference to his incompetent representation, it could have produced him as a witness, or have taken his affidavit and filed it as a part of the evidence at the hearing. Its failure to do so strengthens the inference that appellant's positive allegations of fact were true. The record of the questions and answers asked appellant at the time of his arraignment and plea of guilty fail as a matter of law to furnish any justification for sustaining the action of *Page 476 the trial court. What did an ignorant layman of another state, only twenty-one years of age, who had never been in any serious trouble before, know as to whether or not he had been over-persuaded to enter a plea of guilty, and that it was done of his own free will and choice. A plea of guilty is not conclusive when constitutional rights are denied. Joseph Cardinal Mindszenty admitted guilt and confessed a charge of treason, but the free world knows judicial tyranny regardless of its form. The judicial inquiry, which properly goes behind the plea must be directed to the determination of what preceded the plea and how it was obtained. The accused must be advised by competent counsel as to his legal and constitutional rights before he is in a position to freely and understandingly enter the plea. Rhodes v. State (1927), 199 Ind. 183, 156 N.E. 389. A multiplication of authorities on this axiomatic proposition is unnecessary.
In Hoy v. State (1947), 225 Ind. 428, 440, 75 N.E.2d 915, 920, in an opinion by Young, J., and concurred in by the writer of the prevailing opinion in the present appeal, where the trial court forced appellant to trial on the same day counsel was appointed, it was held that there had been a denial of the constitutional right to counsel. It was there said, "Little time could have been left for consultation and preparation for the trial by counsel. Adequate time for consultation and preparation was an essential as appointment of counsel." In Rice v. State (1942), 220 Ind. 523, 44 N.E.2d 829, this court held it was reversible error to deny a motion for continuance and force the defendant to trial on a charge of rape, when counsel would only have approximately one-half day in which to prepare for trial.
If "adequate time for consultation and preparation" is essential before trial, it necessarily follows that adequate *Page 477 time must be afforded and used if counsel is to be in any position to advise whether to stand trial or enter a plea of guilty. No one contends that an accused is entitled to the services of a Darrow or a Choate. Our profession has never made any claim of infallibility in either criminal or civil litigation. But we know from the many laborious hours that were spent by prior members of this court in writing the many cases on unlawful search and seizure, that such problems could not be adequately considered by any lawyer in fifteen minutes. The determination as to whether or not the state police had probable cause to search appellant's automobile of necessity would require considerable research. At the argument it was suggested by the present counsel for appellant that the building alleged to have been broken and entered was not in fact a building within the meaning of the statute on burglary in the second degree. The problem of included offenses was also presented in the charge of burglary in the second degree, since a jury would have the right to find appellant guilty of grand larceny or petit larceny. The appellant has the right to require the state to prove him guilty beyond a reasonable doubt of every material allegation of some offense charged, but he was not advised of this right. Before an accused can freely and understandingly enter a plea of guilty to a charge made he must be properly advised by his counsel, after counsel has made whatever investigation of the facts and law may be necessary in the particular circumstances. If the accused be in fact guilty, and in the honest and informed opinion of counsel the jury would return a verdict of guilty, counsel may properly so advise the accused, but the accused alone has the sole right to elect whether he will plead guilty or stand trial. The record discloses an entire absence of any attempt by counsel to give his "`entire *Page 478 devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability.'" Canon 15, Canons of Ethics of the American Bar Association. See also Canons 4, 5 and 8. Appellant was at least entitled to the legal services that could be afforded by any second year law school student qualified to prepare a moot court case. He did not even have that. Under the circumstances in this record, the payment of the $5.00 fee was a gross over-payment. The representation here was merely perfunctory, passive and casual. Abraham et al. v. State (1950), 228 Ind. 179, 91 N.E.2d 358; Rhodes v. State (1927),199 Ind. 183, 156 N.E. 389; Castro v. State (1925),196 Ind. 385, 147 N.E. 321; Wilson v. State (1943), 222 Ind. 63,51 N.E.2d 848; Bradley v. State (1949), 227 Ind. 131,84 N.E.2d 580; Sanchez v. State (1927), 199 Ind. 235, 157 N.E. 1;Powell v. Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527. The facts in this record are much stronger for relief than either the Rhodes case or the Powell case. Therefore the conviction should have been set aside.
1 The rule on exhaustion of remedies before instituting an action for a writ of habeas corpus in the U.S. District Court has been changed by Darr v. Burford (1950), 339 U.S. 200, 94 L.Ed. 511, 70 S.Ct. 587.