In re Evans

Per Curiam.

Petitioner was charged with first-degree murder and found guilty by a jury. He filed his petition under Rules 2-40 and 2-40A of this court on May 5, 1965, requesting that the Public Defender show cause why he should not represent the petitioner. The Public Defender filed his response on April 1, 1966.

Petitioner alleges that he is an inmate of the Indiana State Prison at Michigan City, Indiana; that time for regular appeal has expired; that on three occasions he requested assistance from the Public Defender under Rules 2-40 and 2-40A; that the Public Defender indicated possible lines of investigation in two letters to petitioner; that thereafter the Public Defender refused to represent petitioner; that petitioner is proceeding as a pauper.

In the Public Defender’s response it is clear that his office has reinvestigated this case to determine whether there is any newly-discovered evidence that would justify him in taking any action in this case.

Petitioner during trial admitted the killing, but pleaded not guilty by reason of self-defense. As the Public Defender appropriately states at page 4 of his response:

“The jury did not believe that the petitioner acted in self-defense, and found him guilty of First Degree Murder.”

As the Public Defender asserts, it is a question for the sole determination of the jury as to whether self-defense justifies a killing. Robinson v. State (1962), 243 Ind. 192, 184 N. E. 2d 16; Swift v. State (1961), 242 Ind. 87, 176 N. E. 2d 117.

The petitioner, in paragraph 4 of his petition, states that Mr. Sid Cleveland of the Public Defender’s office twice wrote him, indicating possible lines of investigation. It could be inferred from this that the Public Defender, while telling petitioner of lines of investigation, did not pursue said investigation. However, the evidence shows that the Public Defender did pursue such investigation. We quote from page 4 of the Public Defender’s response:

“I [Robert S. Baker, Public Defender] personally went to Jeffersonville, Indiana, to investigate the facts of the case, to see whether or not I could find any newly discovered evidence that might justify our office taking any action in the case and personally talked to the police department, and to defense counsel, and defense counsel informed me that in his opinion there was no error in the trial that would justify a motion for a new trial or an appeal.

“That from all of the facts of the case, I found that without question, the petitioner killed the decedent by either kicking his head to such an extent that it resulted in multiple fractures of his skull, or that the petitioner beat the decedent over the head with a water pipe causing the death of the decedent, and that the defense on the part of the petitioner was that he acted in self-defense. The jury did not believe that the petitioner acted in self-defense, and found him guilty of First Degree Murder.”

For these reasons, petitioner’s petition is denied.

Note. — Reported in 215 N. E. 2d 558.