Anderson v. Buchanan
| Citation | 292 Ky. 810 |
| Parties | Anderson v. Buchanan et al. |
| Decision Date | 22 January 1943 |
| Court | United States State Supreme Court (Kentucky) |
1. Criminal Law. — The remedies provided for new trial of civil actions after final judgment has been affirmed by the Court of Appeals do not apply to convictions of crime (Civil Code of Practice, secs. 340, 344, 518).
2. Criminal Law. — Under statute prescribing rights and procedure to obtain new trial of criminal convictions, the trial court's authority is limited to acting on an application filed at the same term at which the judgment was rendered, except upon a reversal of the conviction by the Court of Appeals (Criminal Code of Practice, secs. 271, 274, 404).
3. Habeas Corpus. — "Habeas Corpus" is not the proper remedy to
obtain new trial of a criminal prosecution or release from custody except where the conviction is void, and to establish error in the trial or some latent or hidden fact, such as undiscovered evidence or perjured testimony which may result upon presentation in acquittal, is not sufficient to entitle petitioner to habeas corpus (Criminal Code of Practice, sec. 404).
4. Criminal Law. — The common-law "writ of coram nobis" is intended to correct a final judgment by the same court in which it was rendered after the term has expired for errors of fact not attributable to the defendant's negligence, which it is presumed would not have been committed had the fact been disclosed.
5. Criminal Law. — A defendant convicted of crime and sentenced to death, after expiration of the term of court at which he was tried, need not resort to the federal courts to obtain relief, where he can establish his innocence and the prosecuting officers concede that he was convicted upon perjured testimony or that evidence has been newly discovered and that he should be exonerated.
6. Constitutional Law. — The "writ of coram nobis" is a part of "due course of law" within constitutional provision insuring every person a remedy by due course of law for an injury done him in his person (Const. sec. 14).
7. Criminal Law. — The "writ of coram nobis" is intended to revest the trial court with jurisdiction in an extreme emergency and to permit inquiry into the question whether a conviction should be vacated because defendant was unknowingly deprived of a defense which probably would have disproved his guilt, and, if that probability be established, to grant a new trial.
8. Criminal Law. — The court in which a conviction was had has discretion to grant a "writ of coram nobis" where it appears that but for alleged false testimony or undiscovered evidence of such conclusive character that the verdict probably would not have been rendered and there is a strong probability of miscarriage of justice unless the process be granted.
9. Criminal Law. — To justify grant of "writ of coram nobis," it is not enough merely to show that a prosecuting witness has subsequently made contradictory statements or that he is willing to swear that his testimony upon the trial was false.
10. Criminal Law. — Obtaining a writ of coram nobis is not a matter of right, but the granting of it is a matter of sound judicial discretion to be exercised upon a showing of reasonable certainty.
11. Criminal Law. — On application for "writ of coram nobis," guilt of defendant is not a subject of inquiry, but the genuineness and good faith of a witness' repudiation of false testimony resulting in conviction or of newly discovered evidence and probability that conviction would not have resulted if the truth had been
revealed must be inquired into and due diligence to discover the grounds of the application before it was too late to be available under any statutory processes is to be considered (Criminal Code of Practice, secs. 271, 274, 404).
12. Criminal Law. — On application for writ of coram nobis, it should be made to appear with reasonable certainty that earlier action by defendant to secure relief under the statutory processes is not reasonably possible or that there was an extreme exigency before a stay of execution should be ordered (Criminal Code of Practice, secs. 271, 274, 404).
13. Criminal Law. — Petitioner was not entitled to new trial of murder conviction after conviction was affirmed by the Court of Appeals, on ground of newly discovered evidence that conviction was based on perjured testimony (Criminal Code of Practice, secs. 271, 274, 404).
14. Habeas Corpus. — Petitioner was not entitled to habeas corpus to obtain discharge from custody under murder conviction after conviction was affirmed by Court of Appeals on ground of newly discovered evidence establishing that conviction was based upon perjured testimony.
15. Criminal Law. — Petitioner was entitled to writ of coram nobis where, after murder conviction was affirmed by the Court of Appeals, evidence was newly discovered establishing that the conviction was upon perjured testimony, and, excluding such evidence whether other evidence would have supported conviction was problematical.
Appeal from Fayette Circuit Court.
Frank R. Cahill, Jr., and Rush Nicholson for appellant.
Hubert Meredith, Attorney General, Owen Keller, Assistant Attorney General, and James Park for appellees.
Before Chester Adams, Judge.
OPINION OF THE COURT BY STANLEY, COMMISSIONER.Reversing.
Robert H. Anderson was convicted of the murder of Marian Miley and sentenced to death. The judgment was affirmed. Anderson v. Commonwealth, 291 Ky. 727, 166 S.W. (2d) 30. Upon their separate trials, Tom Penney and Raymond S. Baxter were also sentenced to death for the same crime and the judgments were affirmed. Penney v. Commonwealth, 292 Ky. 192, 166 S.W. (2d) 18; Baxter v. Commonwealth, 292 Ky. 204, 166 S. W. (2d) 24. As disclosed in those opinions, the murder of Miss Miley and of her mother, Mrs. Elsie Miley, was committed in burglarizing the Lexington Country Club in the early morning of September 28, 1941. Under the statute and a reprieve of Anderson by the Governor, the penalties will be imposed on Friday, January 22, 1943.
Recently Anderson obtained the depositions of Penney and Baxter under an order of the Jefferson Circuit Court. Buchanan v. Anderson, 292 Ky. 813, 168 S.W. (2d) 48, decided today. He then filed a petition in equity, with appropriate motions, in the Fayette Circuit Court in which he was convicted, against the Warden of the Penitentiary, the Attorney General and the Commonwealth's Attorney of the judicial district, seeking (1) a new trial; (2) a writ of habeas corpus and discharge from custody; and (3) a writ of coram nobis against the defendants to show cause, if any they have, why the judgment of conviction should not be vacated.
The allegations are in substance that since the judgment was affirmed newly discovered evidence has become available, the effect of which is to exonerate the petitioner and establish that his conviction was upon false and perjured testimony. Some other allegations have been abandoned. A transcript of the depositions of Penney and Baxter were filed as part of the petition.
Penney was the principal witness against Anderson, as is shown in the opinion affirming his conviction. Whether other evidence would have been sufficient to convict him is problematical. In his deposition Penney retracts that testimony as it relates to Anderson and states that Anderson had nothing to do with the commission of the crime. He described the murder and his part in it substantially the same as he did on the trial, except that he now says he had taken and used Anderson's automobile that night without his knowledge or consent and had been joined by one Buford Stewart instead of by Anderson. He insists that he told the truth on the trial except that he had substituted Anderson in place of Stewart. He had done this because he believed Anderson had had him robbed of a cache of stolen whiskey which he had tried to sell Anderson, and that he had reported his automobile stolen and put the police on his trail resulting in his arrest in Fort Worth, Texas. He also deposes that he had not believed Anderson would be convicted of the crime since his would be the only testimony against him, and from long experience in his own criminal trials he knew that a man could not be convicted on the uncorroborated testimony of an accomplice. Penney further states that he is reconciled to his sentence of death, has given up hope of escaping it and wants to make a clean breast of the matter. It is disclosed that Stewart had been killed several months before Penney first indicated his purpose to repudiate his involvement of Anderson, but Penney denies having then heard of that fact. Penney relates some occurrences and names certain persons who may be able to corroborate his story or who will establish it as untrue if opportunity be given for investigation. Baxter deposes substantially as he had testified on his own trial, that he was under the influence of liquor and marihuana and had little memory of what had occurred. However, he now declares he cannot say that it was Anderson who accompanied Penney that night.
The Circuit Court, following the decisions of this court, denied the petitioner any relief, except the issuance of a writ of habeas corpus conditionally. We have carefully re-examined the questions of law and for reasons stated are impelled to depart from previous rulings relating to the writ of coram nobis. Because of the short time before the date set for Anderson's execution, our decision has been heretofore announced and an order entered staying the execution until February 26, 1943.
1. The Legislature has made provision for the granting of a new trial of a civil action after final judgment and affirmance by the Court of Appeals by enacting Sec. 518 of the Civil Code of Practice, into which is brought the terms of Secs. 340 and 344. Among the grounds upon which such new trial may be granted are for fraud in obtaining the judgment and newly discovered evidence. But ...
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