Nickels v. State

• Decision Date: 21 July 1923
• Citation: 86 Fla. 208,98 So. 497
• Parties: NICKELS v. State[*]
• Court: Florida Supreme Court

98 So. 497

86 Fla. 208

NICKELS v. State^[*]

Florida Supreme Court

July 21, 1923

Rehearing Denied Oct. 13, 1923.

Error to Circuit Court, Volusia County; James W. Perkins, Judge.

Aubrey Lee Nickels was convicted of rape, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

When writ of error coram nobis will issue stated. The writ of error coram nobis, which issues for the correction of a judgment entered in ignorance of certain matters of fact which if they had been known to the court rendering the judgment it would not have been entered, with not be allowed as of course, but only upon its being made to appear with reasonable certainty that there has been some error of fact in the trial of the cause which had it been known to the court the judgment would not have been entered.

Writ coram nobis will not reach facts actually determined in original proceedings nor lie when proper remedy by appeal or writ of error, nor for false testimony nor newly discovered evidence. A writ of error coram nobis will not reach facts actually determined in the original proceedings; nor will it lie when a proper remedy is afforded by appeal or ordinary writ of error, nor for false testimony at the trial, nor newly discovered evidence. (Quaere: Whether the discretion of the trial judge in refusing the writ is reviewable.)

Law providing for new trial held applicable to extraordinary motion made after term in which trial had. Section 2810, Revised General Statutes 1920, which provides when and how motions for new trials may be made and the effect of same applies to an extraordinary motion for a new trial made after the term at which the trial was had.

New trial not granted on unsupported affidavit of defendant when resting on ground of newly discovered evidence. Recitals in a motion for a new trial are not evidence of the facts stated therein; nor should the motion be granted upon he unsupported affidavit of the defendant when it rests upon the ground of newly discovered evidence.

Refusal of motion to take testimony in support of extraordinary motion for new trial after trial term held not erroneous. The refusal to grant a motion to take testimony in support of an extraordinary motion for a new trial in a criminal case which was made after the term of the court at which the trial was had is not error.

Requisites of affidavits relating to disqualification of judge on account of prejudice against accused stated. Section 2674, Revised General Statutes 1920, relating to the disqualification of a judge on account of prejudice against the accused requires the affidavit of the defendant to state the facts and the reasons for the belief that any such bias or prejudice on the part of the judge exists, and requires that the facts stated as a basis for making the affidavit shall be supported in substance by affidavit of at least two reputable citizens of the county not of kin to the defendant or of counsel for the defendant.

COUNSEL

James H. Bunch, of Jacksonville, for plaintiff in error.

Rivers Buford, Atty. Gen., J. B. Gaines, Asst. Atty. Gen., and George A. De Cattes, State's Atty., of Sanford, for the State.

OPINION

ELLIS J.

During the month of December, 1921, a young man about 21 years of age, named Aubrey Lee Nickels, came to the city of De Land in this state. What business, occupation, or trade he had the record does not disclose, but it does divulge the information that he soon formed an illegitimate traffic relation with one Robert Robinson, called the 'Hunchback,' who had a lunch counter and cool drink stand in the city. The relation was that of purchasing agent for the 'Hunchback' of 'moonshine' whisky for which purpose the 'Hunchback' supplied Nickels with about $185. Having obtained the money, he inquired of his patron for information concerning 'sporting' women and was directed by that person to the prosecutrix. Having located her residence he effected an entrance under the false representation of being a plumber and desired to examine the water pipes for a pretended leak. After gaining an entrance into the house which he did by deceiving Mrs. Moore, the occupant of the house and prosecutrix in this case, he inveigled her into the bathroom under pretense of showing her the leaks and instructing her how to obtain the usual water supply without causing it to spray upon the varnished floor. When she came to the bathroom, he locked the door, struck her several times until she became unconscious and then effected his purpose of having sexual intercourse with her. When he completed that offense, he tied his victim to a water pipe went through the house, stole several pieces of jewelry consisting of rings and gold watches and left the house. According to his own story, he effected his escape, from the sheriff and a posse which had been organized to assist the sheriff in finding him and arresting him, by the assistance of the 'Hunchback,' who concealed him until dark and then took him to Sanford where he boarded a train for Jacksonville. He was arrested in that city a short while after his arrival and identified, by means of the stolen jewelry, as the rapist who had fled from De Land. Upon being confronted by the charge he confessed his guilt, after being fully warned of the consequences of such confession and through no fear of injury nor hope of reward so far as any influence was exerted by those to whom he confessed was concerned.

On the 12th of April, 1922, Nickels was indicted by the grand jury of Volusia county for the rape upon Mrs. Moore. And on May 1st, was arraigned and pleaded 'not guilty.' Not having procured counsel, two members of the Daytona bar were assigned by the court to represent him. During the afternoon when the case was called for trial, the defendant expressed a desire to withdraw his plea of not guilty and plead guilty to the indictment. After the fullest examination of the defendant by both court and state attorney as to the defendant's purpose in pleading guilty and as to his knowledge of the consequences of such plea, he was permitted to withdraw his plea of not guilty and interpose the plea of guilty.

The court then took the testimony as to the circumstances. The testimony of Mrs. Moore was taken as to the assault and the pretense under which the defendant secured an entrance into the house, the testimony of Mr. Moore, the husband of the prosecutrix, as to the condition of the house which had been ransacked for valuables, the torn condition of Mrs. Moore's clothing and bruises upon her body, particularly upon her legs and thighs and face, was taken, and the testimony of police officials of the city of Jacksonville and the official court reporter of the Fourth judicial circuit as to the details and circumstances of the defendant's full, free, and voluntary confession of his crime to the state attorney.

When all this was done the court sentenced the prisoner to death.

In November, 1922, nearly seven months after the judgment of the court was entered, the defendant through counsel who had been employed in his behalf in the city of Jacksonville moved the court for a writ of error coram nobis. The motion which contained the alleged grounds for the issuing of such a writ was sworn to by the defendant. To it was also attached the affidavits of Mr. Brass and Mr. Green, the two attorneys of the Daytona bar who had been appointed to defend the prisoner. There was also attached the affidavit of Mr. McCollum as to the excitement of the people and their indignation against the perpetrator of the crime on the day it was alleged to have been committed, and that such feeling continued 'very strong against Nickels' after his arrest in Jacksonville to the day of trial. The affidavits of certain women were also attached to the effect that very soon after the commission of the alleged crime Mrs. Moore, who had not entirely recovered from the attack sufficiently to put on fresh clothing and treat her wounds, said that she 'was knocked unconscious and did not know whether she was raped or not.' There was also another affidavit by the defendant purporting to fully set forth all the circumstances of his relations with Mrs. Moore and the 'Hunchback,' the smallest details of the transaction upon his last meeting with Mrs. Moore, the excitement of the people and their feeling against him when the rumor had gotten abroad that Mrs. Moore had been assaulted, his escape from the city with the aid of the 'Hunchback,' how his confession of the crime was extorted from him by the officers in Jacksonville, who told him of the 'feeling among the people in De Land' being so strong against him; that these 'men dressed in plain clothes' told him that if he confessed to the charge of rape 'that he could not be hung for it and that would be the best way' for him to get out of the trouble; that B. J. Moore had said that he would 'shoot this defendant off the witness stand if this defendant told anything against his wife at the trial.' This language referred to Moore's wife, as the defendant was not married; that he was not given any assistance by his counsel, whom, by innuendo, the defendant charged with craven disloyalty.

The judge denied the motion. In that order there was no error. The writ of error coram nobis, which issues for the correction of a judgment entered in ignorance of certain matters of fact which if they had been known to the court rendering the judgment it would not have been entered, will not be allowed as of course, but only upon its being made to appear with reasonable certainty that there has been some error of fact. In some cases it has been held that the discretion of the trial judge in refusing the writ is not reviewable. See 2 R. C. L. pp. 305-310; Sanders v State, 85 Ind. 318, 44 Am. Rep....