Cook v. State ( 1959 )

Landis, J.

In the Howard Circuit Court appellant filed petition to correct an allegedly erroneous judgment which he states was rendered against him in 1950 growing out of his conviction of second degree murder and manslaughter. Appellant’s petition was filed pursuant to Rule 2-40B of this Court.¹

Thom appellant’s petition it appears appellant was charged by indictment in three counts with the crimes of first degree murder, second degree murder and manslaughter. After a jury trial appellant was acquitted of first degree murder but convicted of second degree murder and manslaughter. He was sentenced to life imprisonment for second degree murder and to 2-21 years for manslaughter.

Appellant contends that the verdicts of guilty for second degree murder and manslaughter are inconsistent as murder requires malice whereas manslaughter does not, and therefore the judgment of the court sentencing appellant to life imprisonment for second degree murder was void ab initio.

Appellee (The State) argues against the validity of appellant’s foregoing contention but further points out that appellant in 1954, four years after his conviction, filed a coram nobis petition in the Howard Circuit Court raising the same question as to the validity of the second degree murder and manslaughter convictions which he is attempting to raise here. In that proceeding the lower court set aside the manslaughter judgment but allowed the second degree murder judgment to stand. No appeal was taken from that ruling of the court so that at this time only one judgment of the Howard Circuit Court is in force.

We are therefore of the opinion, as urged by the State, that any question as to the inconsistency of the two judgments of conviction for second degree murder and manslaughter is now purely hypothetical and moot, and that appellant has presented no valid contention indicating the lower court to have been in error in denying him relief under his petition filed under Rule 2-40B of this Court.

. Judgment affirmed.

Arterburn, C. J., and Jackson and Bobbitt, JJ., concur. Achor, J., dissents with opinion.

1 . Rule 2-40B provides: “Whenever it shall appear from the indictment or affidavit and final judgment in any criminal cause that an erroneous sentence has been imposed by the trial court, the defendant in such cause may at any time petition the trial court to correct retroactively such judgment to conform to the term of imprisonment specified in the applicable statute upon proper notice (by serving a copy of the petition in person or by mail) upon the Prosecuting Attorney of the circuit and the Attorney General of Indiana. An appeal may be taken to the Supreme Court from a final order granting or denying said petition under the same rules and conditions as provided in Rules 2-40 and 2-40A of this Court. Effective November 16, 1954.”