167 S.W.2d 703 (Ky.App. 1942), Elliott v. Commonwealth

Citation:167 S.W.2d 703, 292 Ky. 614
Opinion Judge:SIMS, Commissioner.
Party Name:ELLIOTT v. COMMONWEALTH. SAME v. BUCHANAN.
Attorney:Zeb A. Stewart, of Corbin, for appellant. Hubert Meredith, Atty. Gen., and Wm. F. Neill, Asst. Atty. Gen., for appellees.
Case Date:December 18, 1942
Court:Court of Appeals of Kentucky
 
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Page 703

167 S.W.2d 703 (Ky.App. 1942)

292 Ky. 614

ELLIOTT

v.

COMMONWEALTH.

SAME

v.

BUCHANAN.

Court of Appeals of Kentucky

December 18, 1942

Rehearing Denied Feb. 12, 1943.

Appeal from Circuit Court, Whitley County; Flem D. Sampson, Judge.

Proceedings by William Elliott against the Commonwealth of Kentucky for a writ of coram nobis and separate proceeding by same plaintiff against W. Jess Buchanan, Warden of Penitentiary at Eddyville, Kentucky, for a writ of habeas corpus. From adverse judgments, William Elliott appeals. By agreement the appeals were heard together.

Affirmed.

Page 704

Zeb A. Stewart, of Corbin, for appellant.

Hubert Meredith, Atty. Gen., and Wm. F. Neill, Asst. Atty. Gen., for appellees.

SIMS, Commissioner.

These appeals are prosecuted by William Elliott from a judgment of the Whitley Circuit Court denying him a writ of coram nobis, and from a judgment of the Lyon Circuit Court refusing to grant him a writ of habeas corpus. By agreement the two appeals were heard together and both will be disposed of in this opinion.

Appellant and petitioner below, Elliott, was convicted of murder in the Whitley Circuit Court and his punishment fixed at death. That judgment was affirmed on appeal and his petition for rehearing denied in 290 Ky. 502, 161 S.W.2d 633. Elliott then filed a petition in the United States District Court for the Western District of Kentucky for a writ of habeas corpus which was denied him by Hon. Shackleford Miller, Judge of that Court. Next, he filed a petition in equity without success in the Whitley Circuit Court asking a writ of coram nobis. He followed that by an application to this court for a temporary writ of coram nobis, in which he was likewise unsuccessful. The Judge of the Whitley Circuit Court having refused to stay Elliott's execution until he could perfect his appeal, and as the judgment did not grant an appeal, Elliott immediately took his appeal in this court, the clerk of which stayed his execution under Criminal Code of Practice, §§ 295 and 336. Whether or not the clerk had authority to do so in this character of action it is unnecessary to decide at this time since it was done and was favorable to petitioner.

Appellant's next move was to file his petition for a writ of habeas corpus before Hon. Ira D. Smith, Judge of the Lyon Circuit Court. The averments of this petition were confined with one exception, to alleging errors committed on his trial in the circuit court which were held to be without merit when the judgment was affirmed in 290 Ky. 502, 161 S.W.2d 633. The one exception contained in the petition was that since the trial and since the affirmance of that judgment it was discovered that several jurors by remarks made previous to and during the trial, unknown to appellant and to the circuit judge, show that they had prejudged Elliott and were disqualified to sit in his case. Judge Smith refused to grant habeas corpus, dismissed the petition and granted Elliott an appeal.

This ruling was correct under the authority of Smith v. Buchanan, 291 Ky.

Page 705

44, 163 S.W.2d 5, wherein it was held that habeas corpus does not lie to correct hidden errors which were unknown to the court and the defendant at the time the judgment was rendered, and that such remedy is available only when the judgment is void as shown in the record of the trial. The opinion in Smith v. Buchanan was rendered but a few months ago and it goes into the question thoroughly as to when a writ of habeas corpus will lie, hence it is unnecessary to make further comment here on the subject. The judgment of the Lyon Circuit Court refusing habeas corpus is affirmed.

The petition seeking coram nobis filed in the Whitley Circuit Court contains practically the same averments as are in the petition filed in the Lyon Circuit Court asking a writ of habeas corpus. It is long and we will not attempt to ennumerate the twenty-eight grounds given for the basis of the writ of coram nobis. Many of them were repetitious, and as just stated above, all but one were raised on the appeal and the petition for rehearing and were disposed of in the opinion in 290 Ky. 502, 161 S.W.2d 633. The only averment in the petition which could sustain coram nobis is the alleged misconduct of four of the jurors, which was not discovered until after the expiration of the term at which the trial was had. This averment is to the effect that a juror, Gus Wells, said to Andrew Rowland before trial that he was on the jury panel and if he sat in the Elliott case, he would give him "the chair". Another juror, Gabe Thomas, is alleged to have made practically the same statement to Dave Patrick before the trial. When the jury was viewing the scene of the killing at the jail, the petition avers that Mila Adams, an aunt of Elliott, overheard two jurors, who were a little distance from the other members of that body and whose names she did not know, say that if they "would do to suit" the Commonwealth Attorney, they would get jury service and could earn money for the payment of taxes.

Elliott's execution was set for July 3, 1942, and upon filing his petition for a writ of coram nobis in the Whitley Circuit Court on June 27th, he obtained a temporary restraining order to stay his execution until his petition could be heard. The restraining order recited that on June 30th, Elliott would move Hon. Flem D. Sampson (Judge of both the Whitley and Knox Circuit Courts) at the courthouse in Knox County for a temporary injunction to stay his execution. On June 30th, attorneys representing the Commonwealth appeared at the appointed hour in the Knox County courthouse and moved Judge Sampson to dissolve the temporary restraining order; also they filed special and general demurrers to the petition, and without waiving same filed answer traversing the petition; and moved the...

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