Alexander v. State

• Decision Date: 23 April 1912
• Docket Number: 682
• Citation: 20 Wyo. 241,123 P. 68
• Parties: ALEXANDER v. STATE
• Court: Wyoming Supreme Court

123 P. 68

20 Wyo. 241

ALEXANDER v. STATE

No. 682

Supreme Court of Wyoming

April 23, 1912

ERROR to the District Court, Big Horn County; HON. CARROLL H PARMELEE, JUDGE.

From a judgment dismissing the petition for a writ of error coram nobis presented to the District Court by Milton A. Alexander the petitioner brought error. The material facts are stated in the opinion.

Affirmed.

W. E Mullen, for plaintiff in error, (Samuel A. King, of counsel.)

The motion to quash the writ and dismiss the petition on the alleged ground that the petition is insufficient in law to warrant the relief prayed for, was regarded as in legal effect a demurrer. Like a demurrer it admitted the facts and challenged the sufficiency of the petition to show that there were errors in the record and prior proceedings of the court. It presented questions of law only to be determined by the court. (2 Tidd's Practice, 1173.) The grounds stated in the motion to quash did not go to the mode of procedure, and did not question the correctness of the remedy to be enforced. In legal effect it admitted that the procedure was proper, and that the issues before the court on the petition and motion were issues of law solely, and therefore the affidavits filed by the respondent had no proper place in the proceeding. By the petition for the writ of error coram nobis a common law remedy was sought--a remedy recognized by the authorities and which has in no particular been modified by statutory enactment in this state. (Hollibaugh v Hehn, 13 Wyo. 280; Sanders v. State, 85 Ind. 318; State v. Calhoun, (Kan.) 32 P. 38.) The court therefore erred in overruling the petitioner's motion to strike out the affidavits filed with the motion to quash.

If the facts set forth in the petition are true, then the plea of guilty previously entered in the case should be set aside. The question of the ability of the prosecuting officers to secure in the future testimony deemed by them important does not answer the proposition that the conditions surrounding the plaintiff in error when he entered his plea of guilty were sufficient in law to warrant setting aside the plea and the judgment. The real question before the court was: Was the plea of guilty obtained by means of force, fear, duress and intimidation, and were the facts and circumstances surrounding the plaintiff in error at the time the plea was entered such as to deprive him of his constitutional rights? Every defendant in a criminal case is entitled to his constitutional rights, particularly those which guarantee him a fair and impartial trial before a fair and impartial jury, and the right to be confronted by the witnesses against him. If those rights were violated, then he is entitled to be restored thereto, and whether the state can or cannot thereafter procure its witnesses is an immaterial question.

It was error to sustain the motion to quash and dismiss the petition of plaintiff in error. It is submitted that the petition shows all the necessary facts to entitle him to the relief demanded. It was not necessary as a condition precedent to this relief that the petitioner should have applied for a change of venue. The statute providing for a change of venue in criminal cases did not repeal the common law remedy here sought. Likewise, it was not necessary that the petitioner should have made an application for a continuance. (Sanders v. State and State v. Calhoun, supra; Const. Art. I, sec. 10.) As to the contention that the petition fails to show a valid defense which was prevented by duress, fear or excusable mistake, it is sufficient to say that the defendant is presumed to be innocent, and presumptions of law need not be stated in his pleading. The petitioner had on two occasions pleaded not guilty to the offense charged. It may be true that under some circumstances a person may be required in a proper pleading to set forth a valid defense, but that is only where the person has been tried, convicted and sentenced, and he is then endeavoring to use the writ to make it answer the purpose of a new trial. Such authorities as there may be upholding that proposition will not be found in states where the common law rules are enforced. The objection, however, was cured by offering to amend the petition.

The objection to the petition that it does not appear that the facts complained of were unknown to the court or the judge thereof when sentence and judgment were pronounced and entered is untenable. Such an allegation is sometimes required where a trial has been had and a record made. In this case the plea of not guilty was withdrawn and a plea of guilty entered, by reason of violence, intimidation, fear and duress. Whether the court or the judge knew or did not know of these conditions was wholly immaterial, because if the conditions had been known by the court or judge and the plea had then been accepted and judgment entered, the defendant would not have been relieved from the duress, fear and intimidation, but the court or judge would then have become a party to the wrong doing. This was the situation in the case of Sanders v. State, supra. The allegations of the pleadings are required by the statute to be liberally construed with a view to substantial justice between the parties. (Comp. Stat., sec. 4416.) This statute has been frequently recognized by this court and approved. Again, by section 4438 the court is required in every such action to disregard any error or defect in the pleadings or proceedings not affecting the substantial rights of the adverse party.

There is nothing in the objection that the petitioner has lost his right by reason of delay, without showing a reasonable excuse therefor. He was not required to institute this proceeding within ten days after the entering of the judgment, the period for filing the motion for new trial. The remedy here invoked is not a statutory remedy, nor is it invoked by any statutory regulation. The point here contended for is in this particular that the petitioner was denied the right of trial by jury, and that a plea of guilty was extorted from him by fear and duress, hence he could not be required to apply for a new trial. A writ of error coram nobis cannot be resorted to for the purpose of correcting errors of law. Its office is to correct an error of fact not appearing on the face of the record, unknown to the court or the party affected, and which, if known in season, would have prevented the rendition of the judgment. (Asbell v. State, 62 Kan. 209, 61 P. 690; Collins v. State, 66 Kan. 201, 71 P. 251.) The objection that the proceedings should have been commenced within one year, and that the writ should be denied without an allegation excusing the delay is also untenable. It is clear that the provision of the statute limiting the time for a proceeding to vacate, modify or annul a judgment by a petition in error does not apply. None of the statutory provisions relating to vacating or modifying a judgment have any application to this proceeding. The objection that the petitioner was guilty of laches in instituting his proceeding, and that such laches will prevent the state from now properly prosecuting the case in the event that the writ should be sustained and a new trial granted cannot be considered seriously. This objection is in the nature of the plea of the statute of limitations, which, in a case of this kind cannot be successfully urged, at least where writs of error coram nobis are controlled by the common law. (State v. Calhoun, 32 P. 38; Powell v. Gott, 13 Mo. 458; Latshaw v. McNees, 50 Mo. 361; Dobbs v. State, (Kan.) 61 P. 408.)

While the granting of leave to amend a pleading is largely discretionary, if the court's discretion is arbitrarily exercised to the prejudice of the party, the appellate court will generally afford relief. The facts pleaded in the petition were not denied, but certain objections were made relating to its sufficiency. If an amendment tendered would cure the alleged defects, there would seem to be no reason why it should not be granted.

The writ of error coram nobis is a proper remedy in criminal cases, and being so it should be issued by the court rendering the original judgment. (Sanders v. State, 85 Ind. 318; State v. Calhoun, 50 Kan. 523; Alder v. State, 35 Ark. 517; Ex parte Toney, 11 Mo. 420; Ex parte Gray, 77 Mo. 160; U. S. v. Plummer, 3 Clifford, 1; Witworth v. U. S. 114 F. 302; Fugate v. State, 85 Miss. 94, 107 Am. St. Rep. 268; State v. Asbell, 62 Kan. 209, 61 P. 690; Dobbs v. State, 62 Kan. 108, 61 P. 408; Calhoun v. State, 66 Kan. 207; 71 P. 251; 97 Am. St. Rep. 361; Whart. Cr. Pl. & Pr., sec. 97-b; 2 Tidd's Practice, sec. 1136; Hollibaugh v. Hehn, 13 Wyo. 350; Wynne v. Governor, 2 Yerg. 149, 24 Am. Dec. 448; 5 Ency. Pl. & Pr. 33.) It is believed that the correct practice was adopted in this case by filing a petition. At any rate, the procedure adopted has in no manner been questioned by the respondent. In some states the practice is regulated by statute, but the matter is always brought to the court's attention by affidavits or by petition. (Crawford v. Williams, 1 Swan, (Tenn.) 340; Milan v. Williams, 47 Tex. 222; Holford v. Alexander, (12 Ala.) 46 Am. Dec. 257; Collins v. State, 97 Am. St. 366; Dobbs v. State, 62 Kan. 108; Alder v. State, 35 Ark. 517.) The petition clearly follows the requirements laid down by the authorities, and states sufficient facts. (Dobbs v. State, supra; State v. Calhoun, supra; Alder v. State, supra; Holt v. State, 78 Miss. 631; Willard v. State, 158 Ind. 687; Birch v. Trist, 8 East, 415; Bigham v. Brewer, 4 Snead, (Tenn.) 452; Jones v. Pearce, 12 Heisk, (Tenn.) 281.)

D. A Preston, Attorney General, Ray B. West, County and Prosecuting Attorney of Big Horn County, and Enterline & LaFleiche, for defendant...