In fact it should be more liberally enforced than it has at many times in the past several years. See concurring opinion Hoy v. State (1947), 225 Ind. 428, 75 N.E.2d 915; dissenting opinions in Todd v. State (1948), 226 Ind. 496, 81 N.E.2d 530, 784, 82 N.E.2d 407; Johns v. State (1949), 227 Ind. 737, 89 N.E.2d 281; Schmittler v. State (1950), 228 Ind. 450, 93 N.E.2d 184. But in each of these cases the claim was seasonably made so that the state would not be prejudiced by reason of death or absence of witnesses, loss of exhibits or loss of memory of the witnesses, when the judgment was vacated and a trial ordered.
Dudley v. State, 200 Ind. 398, 161 N.E. 1; Farlow v. State, 196 Ind. 295, 142 N.E. 849; Farrell v. State, 85 Ind. 221; Winsett v. State, 54 Ind. 437; Lichtenfels v. State, 53 Ind. 161.The Supreme Court of Indiana suggested in 1945 that this respondent might be able to take a delayed appeal. State ex rel. Cook v. Howard, 223 Ind. 694, 64 N.E.2d 25. Cf. also Warren v. Indiana Telephone Co., 217 Ind. 93, 26 N.E.2d 399; State ex rel. White v. Hilgemann, 218 Ind. 572, 34 N.E.2d 129; but cf. Johns v. State, 227 Ind. 737, 89 N.E.2d 281. In 1947 Indiana enacted the more liberal rule into its statutory law.
In due course the respondent moved to dismiss on the ground that the petitioner had not exhausted his state court remedies. The motion was denied for the reason that the merits of his petition for writ of error coram nobis were not reached nor considered by the Indiana Supreme Court. Johns v. State, 227 Ind. 737, 89 N.E.2d 281, 285. It was determined that since the merits of his case had not been considered by the Indiana Supreme Court, there was justifiable excuse for his failure to apply for certiorari to the United States Supreme Court. The transcript of the record shows that the petitioner and his co-defendants were arraigned in the Montgomery County Circuit Court on August 22, 1946.
Article 1, § 13, Indiana Constitution; Wizniuk v. State (1961), 241 Ind. 638, 175 N.E.2d 1; State ex rel. Grecco v. Allen Circuit Court (1958), 238 Ind. 571, 153 N.E.2d 914; Gideon v. Wainwright (1963), 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792. In Johns v. State (1949), 227 Ind. 737, 89 N.E.2d 281, we said: "The attorney's testimony taken as a whole concerning the fifteen or thirty minutes conference had with the appellant leaves the inescapable conclusion that he did not afford the appellant the representation required by the decisions of this court under § 13 of Article I of our Bill of Rights.
Rule 3-2. The dissenting opinion in Johns v. State (1949), 227 Ind. 737, 741, 744, 745, 89 N.E.2d 281, called attention to the requirements for competent representation for an accused as laid down by the Canons of Ethics of the American Bar Association. Canon 5 provides:
Vail v. Page (1911), 175 Ind. 126, 130, 93 N.E. 705, and cases therein cited. See also Johns v. State (1949), 227 Ind. 737, 89 N.E.2d 281. But in this case there was an extension of time granted, and by virtue of Rule 2-2 the Appellate Court had jurisdiction of the subject matter of granting extensions of time although it did not have personal jurisdiction of the appellees to grant the extension.
The brief does not present any contention that he was represented by such incompetent counsel that it amounts to a denial of due process, or the right to representation by counsel under § 13 of Article 1 of the Constitution of Indiana. It does not appear that appellant was denied any constitutional right, nor that there may have been a miscarriage of justice when he was convicted, either of which, under the rule suggested in the dissent in Johns v. State (1949), 227 Ind. 737, 89 N.E.2d 281, would justify this court in searching the record and reviewing for error not properly saved. For these reasons I concur in the affirmance of the judgment.