Ernst v. State

• Citation: 192 N.W. 65,179 Wis. 646
• Parties: ERNST v. STATE.
• Decision Date: 07 February 1923
• Court: United States State Supreme Court of Wisconsin

179 Wis. 646

192 N.W. 65

ERNST

v.STATE.

Supreme Court of Wisconsin.

Feb. 7, 1923.

Original action by Valentine Ernst against the State of Wisconsin. On an order to show cause why a writ of error coram nobis to revoke a judgment and sentence should not issue. Petition denied.Raymond W. Frank, of Milwaukee, for plaintiff in error.

H. L. Ekern, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for the State.

DOERFLER, J.

The matter herein comes before this court upon an order to show cause why a writ of error coram nobis, or some other appropriate writ within the original jurisdiction of this court, should not issue for the purpose of revoking the judgment and sentence of the municipal court of Milwaukee County, Hon. August C. Backus, judge, rendered and imposed on April 28, 1918, pursuant to an alleged plea of guilty entered to an information charging felony. The time limit, under section 4719 of the Statutes, for new trial or for the issuance of a writ of error, has expired.

The petition of plaintiff in error, supported by affidavits, shows that the plea of guilty was entered pursuant to a mistake of fact and to an alleged fraud; that in contemplation of law, the alleged plea of guilty does not operate as a confession; that while on the record there appeared in form an issue, no issue had ever been presented in fact, and that in law the judgment and sentence were void; and that such alleged fraud was not within nor had it come to the knowledge of the court prior to the judgment and sentence. So that, while the record is regular on its face, the petition seeks to nullify and revoke the judgment and sentence for an error in fact which, had it been within the knowledge of the court, no judgment and sentence would have been pronounced.

Assuming the averments in the petition as true, is it within the power of this court or of any other court to afford plaintiff in error relief? Counsel for the plaintiff in error and the learned Attorney General have co-operated zealously in an honest endeavor to aid the court and to solve the proposition involved, and we cannot refrain from commending especially the representative of the state in such co-operation and in assumingan attitude of fairness in his search for the truth, which had for its object and purpose the granting of certain fundamental rights to the plaintiff in error. Such a conception of the duties of the highest law officer of the state in a criminal case is in accordance with the modern and approved standard laid down by the decisions and the authorities.

The municipal court of Milwaukee county, among other things, has power and jurisdiction, in all matters involving felonies, concurrent with that of a circuit court, and such court is, like the circuit court, a court of general jurisdiction in criminal cases. The common law originally did not authorize the granting of a new trial in cases of felony. Rex v. Bertrand, 10 Cox, C. C. 618; Harris, Criminal Law, 406. The only remedy then afforded one charged with crime where the conviction was based upon error in law, was a recommendation of the judges for a pardon. Reg. v. Murphy, Law R. 2 P. C. 535. Where there was an error in fact, the only remedy was by the writ of error coram nobis.

It would appear, therefore, that of the three writs of error known to the common law, namely, the writ of error, the writ of error coram nobis, and the writ of error coram vobis, the writ of error coram nobis preceded in point of time either of the other two writs. In 2 R. C. L. p. 305, § 259, it is said:

“The distinction between an ordinary writ of error and a writ of error coram nobis is that the former is brought for a supposed error in law apparent on the record, and takes the case to a higher tribunal, where the question is to be decided, and the judgment, sentence, or decree is to be affirmed or reversed, while the latter is brought for an alleged error in fact not appearing on the record, and lies for the same court, in order that it may correct the error which it is presumed would not have been committed, had the fact in the first instance been brought to its notice.”

See, also, Fugate v. State, 85 Miss. 94, 37 South. 554, 107 Am. St. Rep. 268, 3 Ann. Cas. 326.

Under our statutes and under the practice in vogue in many of the states and the Federal practice, the writ of error gradually developed so as to embrace on a review not only questions of law, but questions of fact, all of which must appear on the face of the record. The ordinary writ of error, therefore, can afford no relief in a case like the instant one. When a proper remedy is afforded by appeal or ordinary writ of error, the writ of error coram nobis will not lie. 2 R. C. L. p. 306, § 260; Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29.

The writ of error coram nobis has been held a proper remedy, where an infant has appeared solely by attorney, and where the fact of such infancy was not made known to the court. Withrow v. Smithson, 37 W. Va. 757, 17 S. E. 316, 19 L. R. A. 762. Also where the death of a party to an action was not made known to the court prior to the time that the judgment was rendered. Kemp v. Cook, 18 Md. 130, 79 Am. Dec. 681. Also where through the fraud of an attorney a judgment by default was taken. 2 R. C. L. p. 307, § 262. Also where in a criminal prosecution the accused was forced, through well-founded fears of mob violence, to plead guilty. Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29;State v. Calhoun, 50 Kan. 523, 32 Pac. 38, 18 L. R. A. 838, 34 Am. St. Rep. 141; 2 R. C. L. p. 308, § 262.

[1] It is contended by counsel for the plaintiff in error that the power to issue the writ of error coram nobis or vobis in this state does not rest with the circuit court because in the opinion of the court in the case of Ætna Accident & Liability Co. v. Lyman, 155 Wis. 135, 144 N. W. 278, the doctrine as expounded in Teller v. Wetherell, 6 Mich. 46, is cited with approval. Quoting from the Teller Case, it is said:

“As to the jurisdiction of the circuit court, the Constitution and statutes defining and limiting its jurisdiction do not give it power in any case to issue a writ of error, and without this power, a writ of error coram nobis, issued by that court, would be void. 20 Johns. 22;14 Johns. 422.”

In the Ætna Case it was held that a writ of error from the circuit court for Milwaukee county will not lie to review a judgment of the civil court of said county, and that question was the only question involved in that case. In the opinion in that case, by the late Justice Marshall, it is said that:

“The grant to circuit courts was to issue writs ‘to carry into effect...