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Wheeler v. State.

3. On the 22d day of October the appellant petitioned the trial court for a writ of error coram nobis, and the re fusal of the court to award the writ is the third error discussed in the brief of counsel for appellant. The grounds of the application were the existence of excitement and prejudice against the appellant in Warrick county, occasioned by the homicide, and his failure to ask for a change of venue from that county because of his fear of mob violence in case he did so, although he believed that he could not obtain a fair and impartial trial in said county on account of the feeling against him. The nature of the writ coram nobis, and the circumstances under which a proceeding of that character may be maintained, are stated with great fullness of learning by Elliott, J., in Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29. It was there held that a proceeding of this nature may

be maintained in this State, and that it is the appropriate remedy when it is necessary to bring some new fact be fore the court which can not be presented in any of the methods provided by statute. A defendant who enters a plea of guilty upon a necessity produced by a well-grounded fear and imminent danger of mob violence may, according to the authority of that case, avoid the plea by a proceeding in the nature of a writ of coram nobis. In Sander's case it was clear that the plea of guilty was extorted from him "by a well-grounded fear and imminence of mob violence.” The danger was so apparent and pressing that he dared not ask for any delay of the trial, and was compelled to withdraw his plea of "not guilty," and enter a plea of "guilty.”

In the case before us the situation was wholly different. In our statement of the facts we set out with some particularity the various steps taken on behalf of the appellant, and the dates of the different motions and proceedings. Arraigned upon the indictment September 13th, he pleaded not guilty, and his trial was set for the 27th of the month. He applied for a postponement of the trial, and it was delayed until October 4th. He demanded a special venire for

Wheeler v. State.

jurors, and the writ was issued. He challenged the fitness of the regular judge of the court to preside upon his trial, and another judge was appointed. Ten or eleven days were occupied in the trial. Two men were considered a sufficient force to guard the jail where appellant was confined. Whenever it was thought necessary, upon the order of the judge of the court, appellant was removed to the jail of another county, or to a safe place some three miles from the county seat. At no time, after the homicide was committed until judgment was entered on the verdict, was there any attempt by any one to interfere with the regular and orderly proceedings of the court. These facts, all of which are of record, positively contradict the statements of the appellant that he was constrained by threats and fear to forego any right which the law secured to him, and prove that, even if his fears for his safety were excited, those fears were not well grounded. Popular excitement and indignation are the natural results of shocking crimes, and it is not to be expected that a community will remain calm and unmoved when such offenses are perpetrated in its midst. But the existence of sentiments of grief and horror, even when they are given audible expression, does not of itself always constitute sufficient ground for a belief on the part of the accused that he dare not demand the rights secured to him by law. The appellant was under no such apprehension or duress. He asserted those rights, and, in every instance, they were accorded to him by the court. The community submitted to the authority of the law and refrained from violence. It appears from the incontestible evidence of the record itself that the court, throughout the proceedings, had the ability and the inclination to afford to the appellant the protection from mob violence to which he was entitled, and that it gave him the opportunity to exercise every privilege secured to him by the Constitution and the laws. Had the dangers of the situation required it, an application for a change of venue from Warrick county could have been made

Wheeler v. State.

upon his affidavit, while he was in the jail of Vanderburgh county, and decided in his absence. Jones v. State, 152 Ind. 318.

But there is another and sufficient reason for denying the relief afforded by a proceeding in the nature of a writ coram nobis. It is not charged in the appellant's petition that the jury was not composed of impartial and disinterested triers, or that they were improperly influenced by their alleged surroundings, or that their verdict was not re sponsive to, and sustained by, the evidence. The rule is that the extraordinary relief afforded by a proceeding in the nature of a writ coram nobis will not be granted in a criminal case after trial and conviction, except where it clearly appears that the petitioner had a valid defense in the facts of the case, but which, without negligence on his part, was not made because of duress, fraud, or excusable mistake; or that he was prevented from asserting and enjoying some legal right through duress, or fraud, or excusable mistake, these facts not appearing on the face of the record, and being such as, if known in season, would have prevented the rendition and entry of the judgment in question. The appellant's case did not meet the requirements of this rule, and his petition was properly denied.

4. The last question to be determined is whether the court erred in overruling the motion for a new trial. Under this assignment it is objected that the court erred in refusing to continue the cause upon appellant's application from the September term until the December term of the court. The first application for a continuance was made September 24th, and the court postponed the trial until October 4th. On that day appellant renewed his motion for a continuance until the December term, and the court overruled the motion. The reasons for which a continuance was asked in each instance were that the appellant, because of his mental condition, impaired health, and the effects of a self-inflicted wound, failed to realize the gravity of the situation in which

Wheeler v. State.

he stood, and did not employ special counsel until September 15th ; that the attorney appointed by the court to defend him was young and inexperienced in criminal causes; that the attorney employed by him was so engaged in other professional business that he had no time to consult with appellant; and that, for the same reason, he had not been able to make the necessary preparation for trial; that his attorney was weak and sick and threatened with nervous prostration, and one day had been confined to his bed. A further reason for which a continuance was asked was the absence of a medical witness named Pritchell; but, as the witness was present at the trial, and the appellant had the opportunity to examine him, he suffered no injury by the refusal of the court to continue the case on acount of his absence, and such ruling does not constitute reversible error. McDermott v. State, 89 Ind. 187, 189.

According to his own statement, appellant had not less than two weeks for consultation with his attorneys, and, as the only defense was insanity, and the appellant had lived in Warrick county nearly all his life, it can not be said that he had not sufficient time to prepare for trial. The fact that one of appellant's attorneys had other professional engage ments which made it inconvenient for him to give the attention to this case which its importance demanded, was not a good cause for postponing the trial. Nor was the state of the health of this attorney a sufficient cause for delay. It was not shown that he was so ill as to be unable to prepare the case or to take part in the trial, and it did appear that there were other attorneys in the defense. The trial court was in a much better position to decide upon the merits of this application than we are. The motion was addressed to its sound discretion. The affidavits made no such case as left the court no legal option to refuse to grant the delay asked for; and we find in its decision no abuse of the discretion which it was authorized to exercise. Weaver v. State, 154 Ind. 1; Burchfield v, Ştate, 82 Ind. 580; Smith v. Ştate,

Wheeler v. State.

132 Ind. 145; Moulder v. Kempff, 115 Ind. 459; Eslinger v. East, 100 Ind. 434.

The objection that the appellant was not arraigned is contradicted by the record, which shows an arraignment and a plea of not guilty. The subsequent withdrawal of the plea for the purpose of a motion to quash the indictment did not render it necessary to arraign the appellant a second time. Besides, it appears from the record that the appellant, after his motion to quash was overruled, without objection, again pleaded to the indictment, and expressly waived a second reading of it by the clerk. There is nothing in the objection. $1831 Burns 1901; Stewart v. State, 111 Ind. 554; Turpin v. State, 80 Ind. 148; Molihan v. State, 30 Ind. 266; Sohn v. State, 18 Ind. 389; Feriter v. State, 33 Ind. 283; Wood v. State, 92 Ind. 269.

Appellant complains of the decision of the court admitting the following testimony of the witness J. C. Leslie: “Why, he [appellant] was talking a little about his troubles there, and about him having furnished 'grub' for his children, and said, there are some laying around eating it up, and spoke something about some sons-of-bitches that walked the road that he could hardly stand, and slapped his hand on his pocket, and said he had the tools there to stop it with.” This evidence was competent. The facts that appellant's daughter was the wife of Elias Burns; that another child of appellant made her home with Burns and his wife; that appellant's wife lived with her daughter, Mrs. Burns; and that some of Burns' relatives also were there, were shown by other witnesses. It was also proved that the appellant sent some vegetables and other food to Burns' house for the use of his children. The threat was against the person or persons who were eating the articles intended for appellant's children. Burns came within this description, and the evidence tended to show the state of the appellant's feelings toward him, and was admissible for that purpose. Its weight

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