Starr, J.
This is an appeal from a judgment of the Posey Circuit Court denying appellant’s petition for a writ of error coram nobis against the State of Indiana, appellee herein. The appellant has assigned as error that the decision is contrary to law.
The record discloses that the appellant filed his verified petition for the writ and that the appellee in due course filed its answer thereto which put the cause at issue.
The allegations of appellant’s petition are substantially as follows: That on March 30, 1949, an affidavit in two counts was filed in the Posey Circuit Court charging appellant in count one thereof with second degree burglary, and in count two thereof with grand larceny. That appellant was jointly charged in said affidavit with one Jack Jones and one Cyril Broster. That this affidavit charged appellant and his co-defendants with the commission of the offenses on or about March 28, 1949. That on April 1, 1949, appellant entered his plea of guilty in said Circuit Court to each count of the indictment upon the advice of Jesse E. Wade, a member of the bar of said court. That the second count of the affidavit was dismissed at the time the plea of guilty was entered; that upon said plea the court sentenced appellant on the first count to the Indiana Reformatory, which sentence appellant is now
serving. That appellant was arrested March 29, 1949, by members of the Indiana State Police at New Harmony, Indiana, and that at that time said officers illegally searched, appellant’s automobile without a search warrant and obtained evidence which they thereafter threatened to use ag'ainst him upon the trial of the cause which'they informed appellant they would institute against' him. That said officers did not at-any time fully inform appellant of the nature of' the accusation against him nor advise him of his rights, including his right to counsel, and did not permit him to communicate with his parents; nor did said officers take him before the nearest magistrate to be charged and informed as provided by law, but instead transported him to the State Police Post at Jasper, Indiana, where they subjected him to questioning for several hours and finally induced him to sign a paper purporting to be á confession which they threatened to use against him upon the trial of the cause which they informed him they would institute in Posey County against hiih. That from the time of his arrest, and during the time he was being transported to and from-Jasper, and while there, he was .denied access to an attorney and to his parents. That said officers, on March 31, 1949, returned him to Posey County and turned him over to the sheriff of that county who'then' permitted him to contact his parents who were informed that if they would' make good the property alleged to have been taken that the charges would be ■ dropped. That his parents then reimbursed the owner for his alleged loss; that his mother, on the night' of March 31, 1949, visited him at the county jail but his' parents did not at that time employ counsel as they thought the case was to be dropped, and for the same reason his father did not visit him' or'put in his appear
anee when he entered his .plea. ■ That the appellant, about fifteen minutes before he was called upon to enter his plea, availed himself of the services of said attorney Jesse E. Wade who had been previously engaged to represent one of appellant’s co-defendants. That up until the time of entering his plea appellant had no opportunity to discuss with any person, including his attorney, his predicament and his position with refers ence to the criminal charges against him, and had not been advised of his constitutional rights. That said attorney was paid by appellant’s mother the sum of $5 for his services. That when he was called upon to plead it was falsely rumored in the court room that he was wanted by the law enforcement officers of Illinois, which rumor was believed and indulged in by the said Wade; that he pleaded guilty on the advice of his attorney, • believing, by reason of the representation made to him by his attorney and the police officers then in attendance in court, he would be given a suspended sentence because of his previous good record and character; that at the time of entering his plea he was twenty-one years of age, had never been in any trouble, had never been in court, and was unfamiliar with his right in. the premises and to be heard and to present evidence in mitigation of punishment; that although several persons were in the court room, including his mother, when he pleaded guilty, who could have testified as to his good character, his attorney failed to call any of them or request the court to hear any of them, or other evidence on the question of mitigation of punishment and the propriety of a suspended sentence.
This petition is argumentative throughout. Stripped of all excess verbage it merely alleges and sets out that appellant, at the time of entering his plea of guilty, was not adequately represented by counsel, and
that his attorney did not advise him of his “constitutional rights,” although no specific failure in that regard is relied upon. It is an attempt to show that Mr. Wade made no serious effort to advise and defend the appellant and that his services were merely perfunctory.
The evidence in this cause consisted of the verified petition of appellant which was introduced into evidence by him. Appellant also introduced what purports to be an exhibit to his petition. This exhibit sets out the minutes and records of the doings of the trial court when appellant and his co-defendants entered their pleas, together with the statements of the court and counsel made at that time. This record is in words and figures as follows:
“AND BE IT REMEMBERED THAT: On April 1, 1949, before the Honorable James H. Blackburn, sole Judge of said court the following proceedings were had in said cause to-wit:
Comes now the defendants Sam E. Schmittler, Jack Jones and Cyril Broster and their attorney Jesse E. Wade and comes the State of Indiana by Francis E. Knowles, Prosecuting Attorney and proceedings were as follows:
BY THE PROSECUTING ATTORNEY: THE ARRAIGNMENT OF THE FIRST COUNT.
Q. State your Name?
A. Sam E. Schmittler.
Q. Do you plead guilty?
A. Yes.
Q. State your name?
A. Jack Jones.
Q. How do you plead?
A. Guilty.
Q. State your name?
A. Cyril Broster.
Q. Do you plead guilty?
A. Yes.
PROSECUTING ATTORNEY READS THE SECOND COUNT:
Q. Sam E. Schmittler how do you plead to this count?
A. Guilty.
Q. Jack Jones how do you plead?
A. Guilty.
Q.
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Starr, J.
This is an appeal from a judgment of the Posey Circuit Court denying appellant’s petition for a writ of error coram nobis against the State of Indiana, appellee herein. The appellant has assigned as error that the decision is contrary to law.
The record discloses that the appellant filed his verified petition for the writ and that the appellee in due course filed its answer thereto which put the cause at issue.
The allegations of appellant’s petition are substantially as follows: That on March 30, 1949, an affidavit in two counts was filed in the Posey Circuit Court charging appellant in count one thereof with second degree burglary, and in count two thereof with grand larceny. That appellant was jointly charged in said affidavit with one Jack Jones and one Cyril Broster. That this affidavit charged appellant and his co-defendants with the commission of the offenses on or about March 28, 1949. That on April 1, 1949, appellant entered his plea of guilty in said Circuit Court to each count of the indictment upon the advice of Jesse E. Wade, a member of the bar of said court. That the second count of the affidavit was dismissed at the time the plea of guilty was entered; that upon said plea the court sentenced appellant on the first count to the Indiana Reformatory, which sentence appellant is now
serving. That appellant was arrested March 29, 1949, by members of the Indiana State Police at New Harmony, Indiana, and that at that time said officers illegally searched, appellant’s automobile without a search warrant and obtained evidence which they thereafter threatened to use ag'ainst him upon the trial of the cause which'they informed appellant they would institute against' him. That said officers did not at-any time fully inform appellant of the nature of' the accusation against him nor advise him of his rights, including his right to counsel, and did not permit him to communicate with his parents; nor did said officers take him before the nearest magistrate to be charged and informed as provided by law, but instead transported him to the State Police Post at Jasper, Indiana, where they subjected him to questioning for several hours and finally induced him to sign a paper purporting to be á confession which they threatened to use against him upon the trial of the cause which they informed him they would institute in Posey County against hiih. That from the time of his arrest, and during the time he was being transported to and from-Jasper, and while there, he was .denied access to an attorney and to his parents. That said officers, on March 31, 1949, returned him to Posey County and turned him over to the sheriff of that county who'then' permitted him to contact his parents who were informed that if they would' make good the property alleged to have been taken that the charges would be ■ dropped. That his parents then reimbursed the owner for his alleged loss; that his mother, on the night' of March 31, 1949, visited him at the county jail but his' parents did not at that time employ counsel as they thought the case was to be dropped, and for the same reason his father did not visit him' or'put in his appear
anee when he entered his .plea. ■ That the appellant, about fifteen minutes before he was called upon to enter his plea, availed himself of the services of said attorney Jesse E. Wade who had been previously engaged to represent one of appellant’s co-defendants. That up until the time of entering his plea appellant had no opportunity to discuss with any person, including his attorney, his predicament and his position with refers ence to the criminal charges against him, and had not been advised of his constitutional rights. That said attorney was paid by appellant’s mother the sum of $5 for his services. That when he was called upon to plead it was falsely rumored in the court room that he was wanted by the law enforcement officers of Illinois, which rumor was believed and indulged in by the said Wade; that he pleaded guilty on the advice of his attorney, • believing, by reason of the representation made to him by his attorney and the police officers then in attendance in court, he would be given a suspended sentence because of his previous good record and character; that at the time of entering his plea he was twenty-one years of age, had never been in any trouble, had never been in court, and was unfamiliar with his right in. the premises and to be heard and to present evidence in mitigation of punishment; that although several persons were in the court room, including his mother, when he pleaded guilty, who could have testified as to his good character, his attorney failed to call any of them or request the court to hear any of them, or other evidence on the question of mitigation of punishment and the propriety of a suspended sentence.
This petition is argumentative throughout. Stripped of all excess verbage it merely alleges and sets out that appellant, at the time of entering his plea of guilty, was not adequately represented by counsel, and
that his attorney did not advise him of his “constitutional rights,” although no specific failure in that regard is relied upon. It is an attempt to show that Mr. Wade made no serious effort to advise and defend the appellant and that his services were merely perfunctory.
The evidence in this cause consisted of the verified petition of appellant which was introduced into evidence by him. Appellant also introduced what purports to be an exhibit to his petition. This exhibit sets out the minutes and records of the doings of the trial court when appellant and his co-defendants entered their pleas, together with the statements of the court and counsel made at that time. This record is in words and figures as follows:
“AND BE IT REMEMBERED THAT: On April 1, 1949, before the Honorable James H. Blackburn, sole Judge of said court the following proceedings were had in said cause to-wit:
Comes now the defendants Sam E. Schmittler, Jack Jones and Cyril Broster and their attorney Jesse E. Wade and comes the State of Indiana by Francis E. Knowles, Prosecuting Attorney and proceedings were as follows:
BY THE PROSECUTING ATTORNEY: THE ARRAIGNMENT OF THE FIRST COUNT.
Q. State your Name?
A. Sam E. Schmittler.
Q. Do you plead guilty?
A. Yes.
Q. State your name?
A. Jack Jones.
Q. How do you plead?
A. Guilty.
Q. State your name?
A. Cyril Broster.
Q. Do you plead guilty?
A. Yes.
PROSECUTING ATTORNEY READS THE SECOND COUNT:
Q. Sam E. Schmittler how do you plead to this count?
A. Guilty.
Q. Jack Jones how do you plead?
A. Guilty.
Q. Cyril Broster how do you plead?
A. Guilty.
BY THE PROSECUTING ATTORNEY:
All of the defendants plead to both charges of burglary in the second degree and grand larceny.
BY THE COURT:
Q. State your name?
A. Sam E. Schmittler.
Q. How old are you ?
A. Twenty-one.
Q. You are represented by an attorney, Mr*. Jesse E. Wade?
A. Yes, sir.
Q. Are you entering this plea of guilty of your own free will and choice?
A. Yes, sir.
Q. You have not been over-persuaded to enter this?
A. No, sir.
Q. No threats of any kind used?
A. No.
Q. How old did you say you are?
A. Twenty-one.
Q. What is your name?
A. Jack Jones.
Q. You are charged in this affidavit for second degree burglary and grand larceny?
A. Yes.
Q. You enter this plea of guilty with the advice and consent of your attorney?
A. Yes.
Q. No one has over-persuaded you to do it?
A. No.
Q. How old are you?
A. Eighteen.
Q. When were you eighteen ?
A. February 25th.
Q. Your name is what?
A. Cyril Broster.
Q. How old are you?
A. Nineteen.
Q. You are represented by an attorney, Mr. Jesse E. Wade?
A. Yes.
Q. You are entering this plea of your own free will and choice?
A. Yes.
Q. Has anyone threatened you or persuaded you to enter this plea of guilty?
A. No.
Q. Have you ever been in trouble before?
A. No.
Q. You live in Illinois?
A. Yes.
Q. I will ask-you Mr. Schmittler, have you ever been in trouble before?
A. No.
Q. This is your first time of being arrested?
A. Yes, sir.
Q. Mr. Jones have you ever been arrested before? A. No.
Q. Not for any offense of any kind?
A. No, sir.
BY MR. WADE:
This boy is an orphan and the other two boys are sons of widows and their mothers are here in court
and they tell me that their children have never been in trouble before, they have been good boys and that there is a good job waiting for both of the boys with the prospect of a job for the other one if the court can see fit to suspend the sentence or parole them. If the court could see fit, it being their first offense, they were on a wild-goose chase through New Harmony and it has been done or arranged to be done, the money will be restored there will be no loss to him in this matter if the court could see fit to take it under advisement or suspend the sentence. They belong in Illinois, I don’t know how it could be arranged" one of the officers in Illinois offered to be a sponsor for one of the boys. This is their first offense, they have never been in. trouble before, one of the boys is an orphan and the other two sons of widow women. They did it and there is no excuse for the fact they did do it but perhaps it would be a sore lesson to them.
BY THE COURT:
Here is a plea of guilty to both charges.
BY MR. WADE:
It is really one case.
BY THE PROSECUTING ATTORNEY:
It is one affidavit in two counts. I will dismiss the second count for grand larceny. It is a second degree burglary case. I will dismiss the second count and if the court felt so it will be a shorter term.
BY THE COURT:
The State dismisses as to the second count. The duty is clear regardless of how one pleads. It is the duty of the court to uphold the law and see that the respect of the law is not brushed aside or destroyed. It is not pleasant but what assurance can we have they will not repeat it again, I think the only thing this court has a right to do under these conditions is to inflict the penalty and on their plea of guilty, it is adjudged by the court that the defendants are guilty as charged and that they suffer the penalty of burglary in the second degree by imprisonment
of not less than two years nor more than five years in the Indiana Reformatory and disfranchised for two years and pay the cost.”
In addition to the evidence introduced by the appellant the evidence consisted of the affidavits of four persons introduced on the part of the appellee, which affidavits were substantially as follows: Francis E. Knowles, in his affidavit, stated that he was the Prosecuting Attorney for the Eleventh Judicial Circuit. That as such Prosecuting Attorney he did, on the 30th day of March, 1949, acting upon the information given him by state patrolman John H. Redman and detective Wendolin G. Opel, of the Indiana State Police, and also after having examined the typewritten admission and confession signed by the appellant in which the appellant stated that he, in the company of one Jack Jones and one Cyril Broster, had broken and entered into a Mobilgas filling station in New Harmony, Indiana, on March 28, 1949, prepare an affidavit in two counts charging these three persons with grand larceny and with burglary in the second degree, which affidavit was signed and verified by the owner and operator of the said station. That thereafter he arranged with the Judge of the Posey Circuit Court to have the said defendants arraigned on the 1st day of April, 1949. That the arraignment was purposely delayed until that date to permit the parents and relatives of the defendants to be present in order that the defendants could have the benefit of the counsel of such relatives, and that said date was the most convenient for these relatives to appear in court. That in his capacity as Prosecuting Attorney he advised various ones of the relatives that restitution to the prosecuting witness or the making good of the property alleged to have been taken would not influence the state to dismiss the charges against
the defendants. That he also advised the relatives that if they wished to pay the prosecuting witness for the damages sustained by him the state would have no objection to having such repayment pointed out to the court for whatever effect such fact would have upon the court’s attitude toward mitigation or suspension of sentence upon a finding of guilty.
The affidavit of Wendolin G. Opel stated that he was a detective in the Indiana State Police stationed at Jasper, Indiana. That on the 29th day of March, 1949, between the hours of three and four o’clock in the afternoon the appellant, aged 21, was brought to the Indiana State Police Post situated at Jasper, Indiana, at which time and place this affiant met and talked to the appellant for a period of not more than three minutes concerning the breaking and entering of the above mentioned gas station in New Harmony. That at that time appellant was advised of his constitutional rights and there were no threats, promises or inducements made to him to obtain a confession or admission. That the appellant then and there voluntarily confessed that on the 27th day of March, 1949, he, together with Jack Jones and Cyril Broster drove to the town of New Harmony and there broke into and entered said Mobil-gas station and took and carried away one car battery and $20.00 in United States currency. That following the oral admission the appellant executed a written statement concerning the breaking and entering of the Mobilgas station implicating the said Jones and Broster as accomplices. That prior to the confession and admission of the appellant neither this affiant nor any other police officers present had any knowledge of the fact that Jones and Broster were involved in the breaking and entering. That the appellant signed the written statement in the presence of one Charles W. Lucas,
Clerk of the Indiana State Police at the Jasper Post, this affiant and one John Redman, a patrolman of the Indiana State Police. That neither this affiant nor any other police officer threatened to use the statement against appellant at any time nor was there any mention made concerning the use of the statement upon any subsequent trial. That the appellant, in the presence of this affiant, Lucas and Redman, read the statement and examined the same before he signed it, and before signing the appellant wrote at the bottom of the statement:
“I
have read this and it is true.”
The affidavit of Albert Sturgis sets out the following facts: That he was, on the 29th day of March, 1949, and still is, the Sheriff of Posey County, Indiana. That he received into his custody from state patrolman, John H. Redman, the appellant, at approximately six o’clock P. M. on the 29th day of March, 1949, and at that time placed the appellant in the Posey County jail located in Mount Vernon, Indiana. That on the next day, accompanied by patrolman Redman and detective Opel of the Indiana State Police, he went to Crossville, Illinois, and met the Sheriff of White County, Illinois, and all four of them then journeyed to Grayville, Illinois, where Jones and Broster were taken into custody. That these two co-defendants then were taken to New Harmony, Indiana, where they were turned over to the affiant, and that he thereupon brought the two boys to the jail at Mount Vernon, Indiana, at approximately 5:30 P. M. on March 30, 1949. At no time did Sheriff Cole state that either the appellant or Broster was wanted by the White County authorities, and at no time did the affiant understand that either the appellant or Broster was wanted at any place or in any jurisdiction for any alleged crime other than the one with which they were charged in the Posey Circuit Court. That the
mother of appellant came to the Posey County jail on the night of March 31, 1949, and was permitted to see and talk with appellant, and that he did not at any time state to the parents of said appellant that if they would make good the property alleged to have been taken the charges against appellant would be dropped, and that he at no time heard such promise or similar promise made to the appellant or the parents of said appellant.
Next the affidavit of John H. Redman was admitted into evidence. In his affidavit he stated that on the 28th day of March, 1949, he was a patrolman in the Indiana State Police. That on the evening of that day, acting upon information, he approached the appellant at his automobile which was parked at the curb on North Street in the town of New Harmony and at that time requested appellant to permit this affiant to view the battery in his automobile. That appellant immediately gave his consent and immediately opened the door of the automobile and raised the front seat thereof, thereby exposing the battery to the view of this affiant. That appellant then stated that it was not his battery and asked who had placed the battery in the automobile. That the owner and operator of the Mobilgas station was called to the scene and identified the battery as the one which had been taken at the time of the breaking and entering of his station, whereupon this affiant arrested the appellant and placed him in the New Harmony jail where he remained until the next morning. That the following morning this affiant transported this appellant to the State Police Post at Jasper, Dubois County, Indiana, for the purpose of fingerprinting him and taking photographs. That upon his arrival at the Jasper Post the appellant admitted and confessed that he, together with his co-defendants,- on' the 27th
day of March, 1949, broke into and entered the gas station at New Harmony and carried away the battery and $20.00 in currency. That before making his statement appellant was advised of his constitutional rights; that no threats, promises or inducements were made to him in obtaining the confession. That appellant made his admission within a few minutes after his arrival at the police post, and at no time did any officer threaten to use this statement against appellant at any time or upon any subsequent trial. That before signing the statement the appellant read it and in his own handwriting wrote thereon: “I have read this and it is true.” That following the signing of the statement the appellant was returned to Posey County and placed in the custody of the sheriff of that county and was held in the Posey County jail. That he was turned over to the Sheriff of Posey County at the jail at approximately six o’clock P. M. on the 29th day of March. That at no time while the appellant was in the custody of this affiant did he request or ask permission to consult an attorney or to contact or see any members of his family.
Thus a question of fact was presented. It seems to us that all of the appellant’s contentions were directly met and controverted except the assertion that the appellant’s attorney did not advise him of his constitutional rights and that he failed to adequately represent the appellant. The assertions that he had no opportunity to discuss matters with his attorney and that the attorney did not advise appellant of his constitutional rights are not expressly denied, but it does not necessarily follow that the evidence furnished no conflict as to that, or that the trier of the facts was required to accept appellant’s statement in that regard as true. We have repeatedly said that the
trier of the facts may not disregard or refuse to consider uncontradicted testimony which is all one way,
Riley
v.
Boyer
(1881), 76 Ind. 152;
Roe
v.
Cronkhite
(1876), 55 Ind. 183, but it is not always necessary to accept such testimony as true simply because it is not directly contradicted or denied by other testimony. The trial court had the right to consider the interest of the appellant, the probability or improbability of his assertions in the light of proved or admitted facts, his apparent forthrightness or lack thereof, the conditions and compulsions under which he testified, his wishes and desires and the probable effect upon him of a favorable or unfavorable decision.
Walton
v.
Wilhelm
(1950), 120 Ind. App. 218, 91 N. E. 2d 373. If, taking into consideration these and other factors, the uncorroborated statements of this appellant did not carry conviction, we think the court was entitled to disbelieve his assertions that his constitutional rights were not explained to him by his attorney.
Wright
v.
Peabody Coal Co.
(1948), 225 Ind. 679, 77 N. E. 2d 116;
McKee
v.
Mutual Life Ins. Co. of New York
(1943), 222 Ind. 10, 51 N. E. 2d 474;
Cazak
v.
State
(1925), 196 Ind. 63, 147 N. E. 138;
Cotner
v.
State
(1909), 173 Ind. 168, 89 N. E. 847;
Freese
v.
State
(1903), 159 Ind. 597, 65 N. E. 915;
Wm. P. Jungclaus Co.
v.
Ratti
(1918), 67 Ind. App. 84, 118 N. E. 966. There are occasions when testimony cannot be directly controverted, as would be the case if a convicted man’s former attorney had died, was otherwise unavailable, or did not recollect the facts. If the uncorroborated statements of a man so vitally interested in the result must be accepted as true merely because such assertions have not been expressly denied, and when other facts and circumstances point in a different direction, it would obviously furnish a ready avenue of escape for any and all who had been convicted and imprisoned.
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. His chief complaint seems to be that his attorney did not do everything possible to- mitigate his punishment. From the record recited it would hot appear to us that the attorney failed in this regard, nor does it appear that he acted unwisely in the manner in which the matter was presented. The attorney advised the court that the appellant had never been in trouble before and that it was his first offense. He sought leniency for the appellant and succeeded in having the more serious count of the affidavit dismissed after the appellant had pleaded guilty to it. There is such a thing as strategy in the presentation of a lawsuit, • and the actions, conduct and efforts of the attorney and the advice he gives his client' must be judged in the light of the situation as it appeared to him at the time, and not in the light of: the results actually achieved. • It may well be that the attorney concluded he could best serve his' client by following the method which he adopted and pursued. - Certainly we cannot say on this record, and in the light of the facts as they then existed and- appeared to the attorney, that his method of approach was so unskillful or inadequate as to afford the appellant any just cause- for complaint.
The record discloses that the appellant, at the time of entering his plea of guilty, was represented by counsel and stated to the trial court that he entered his plea of his own free will, acknowledged that he was represented- by counsel, and' that in so making his plea he had not been over persuaded or threatened in any manner. All of these matters tend to contradict the ■ allegations of appellant’s petition- and would support the inference that he was not coerced
into making his plea, and was acting on advice of counsel of his own choosing. The same judge who heard this petition accepted appellant’s plea of guilty. It was his right, subject to review, to determine when appellant was telling the truth.
Bolton
v.
State
(1945), 223 Ind. 308, 60 N. E. 2d 742. Furthermore, there is no contention that appellant’s counsel was incompetent or that he was not fully conversant with’ all the facts in the. case. In fact it appears that this attorney by previous employment was also representing one of appellant’s co-defendants. This court knows that where counsel is conversant with all the facts it would require a very short time in a case such as this for him to arrive at his conclusion as to what should be done.
It must be presumed that appellant’s attorney discharged his full duty and it should require strong and convincing proof to overcome this presumption.
Fambles
v.
State
(1896), 97 Ga. 625, 25 S. E. 365. It will be noted that appellant, upon whom rested the burden of proof, did not produce his attorney’s affidavit or testimony. Here the appellant had it peculiarly within his power to produce this witness whose testimony could or would explain the entire transaction. The fact that the appellant did not produce or at least make an eifort to produce the testimony of this witness raises the presumption that this evidence or testimony if produced would have been unfavorable or prejudicial to him. From this failure the court may have drawn the inference that the attorney would not have corroborated the appellant.
Lee
v.
State
(1901), 156 Ind. 541, 60 N. E. 299;
Hinshaw
v.
State
(1897), 147 Ind. 334, 47 N. E. 157;
Carty
v.
Toro
(1944), 223 Ind. 1, 57 N. E. 2d 434.
From all the evidence and the record in this case the trial court was justified in finding that appellant
was represented by competent counsel of his own choosing throughout the proceedings and made his plea voluntarily, and by making such plea waived any question of deprivation of rights.
Irwin
v.
State
(1942), 220 Ind. 228, 238, 41 N. E. 2d 809. Having so found it would compel the trial court to reject appellant’s contention that his plea was made under a misapprehension of his legal rights or supposed defenses. See
U. S.
v.
Sturm
(1950), 180 F. 2d 413.
It is true that it has been many times said by this court that where a motion is made by the defendant during the term that the plea is made or judgment rendered asking leave to withdraw a plea of guilty on the ground that the same was made without counsel, which motion is supported by affidavits and the material parts thereof are not controverted, that such uncontroverted statements will be taken as true.
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;
Rhodes
v.
State
(1927), 199 Ind. 183, 156 N. E. 389;
Kuhn
v.
State
(1944), 222 Ind. 179, 52 N. E. 2d 491. This rule was also applied in
Cassidy
v.
State
(1929), 201 Ind. 311, 168 N. E. 18. There, however, the court erroneously treated the application to set aside the judgment and withdraw the plea as a motion when in fact it was a coram nobis proceeding. This rule is also applied in interlocutory proceedings such as injunction and receivership cases. See
Kuhn
v.
State, supra.
The matter now before us is not a
motion
to vacate a judgment and for leave to withdraw the plea of guilty made without counsel, but on the contrary it is, so far as the rules of evidence by which it is governed are concerned, an
independent action brought upon the theory of in
adequate representation by counsel. Irwin
v.
State, supra,
p. 248;
Kuhn
v.
State, supra
(dissenting opinion p. 192). We think the rules above stated as to the consideration of evidence in a civil case, rather than those which have been applied in connection with a motion for leave to withdraw a plea of guilty made without counsel, must of right and necessity govern the decision of this case, both in the trial court and in this court, even though it has been ingrafted on our procedure that a case such as the one before us may be tried on affidavits. See
State ex rel. Vonderschmidt
v.
Gerdink
(1946), 224 Ind. 42, 64 N. E. 2d 579.
For the reasons herein stated the judgment is affirmed.
Emmert, C. J., and Gilkison, J., dissent.