Anderson v. Buchanan

• Decision Date: 22 January 1943
• Citation: 168 S.W.2d 48,292 Ky. 810
• Parties: ANDERSON v. BUCHANAN et al.
• Court: Kentucky Court of Appeals

168 S.W.2d 48

292 Ky. 810

ANDERSON v. BUCHANAN et al.

Court of Appeals of Kentucky

January 22, 1943

Appeal from Circuit Court, Fayette County; Chester Adams, Judge.

Action in equity with appropriate motions by Robert H. Anderson against W. Jess Buchanan and others for a new trial of his murder prosecution, a writ of habeas corpus and discharge from custody, and a writ of coram nobis to require defendants to show cause why the conviction should not be vacated. A writ of habeas corpus was conditionally issued, and petitioner appeals.

Reversed and remanded for proceedings consistent with opinion.

SIMS and CAMMACK, JJ., dissenting.

Frank R. Cahill, Jr. and Rush Nicholson, both of Louisville, for appellant.

Hubert Meredith, Atty. Gen., Owen Keller, Asst. Atty. Gen., and James Park, of Lexington, for appellees.

STANLEY Commissioner.

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, 168 S.W.2d 761. 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 trial 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 the Legislature has not made similar provision for a criminal prosecution. We have held consistently that the remedies provided for such a new trial of a civil action are not applicable to a conviction of crime, and that the provisions of Secs. 271 and 274 of the Criminal Code, prescribing rights and procedure to obtain a new trial in such a case, limit the power of the court to acting on an application filed at the same term at which the judgment was rendered, except upon a reversal by the Court of Appeals. Shepherd v. Commonwealth, 264 Ky. 235, 94 S.W.2d 606; Montjoy v. Commonwealth, 270 Ky. 470, 109 S.W.2d 1209.

2. The court sustained the motion of the respondents that before a writ of habeas corpus issue the petitioner be required to execute bond for $25,000, conditioned that he would "not escape by the way, and for the payment of such costs and charges as may be awarded against him," as provided by Sec. 404 of the Criminal Code of Practice. The petitioner was not able to make the bond and no writ was issued. The question of attaching the condition is not a material consideration now in view of our decision in respect of the writ of coram nobis. But it may be pointed out that this court has consistently held to the opinion that habeas corpus is not an available remedy to obtain a new trial or release from custody except where it is shown that the judgment of conviction is void. It is not sufficient to establish that there was an error in the trial or some latent or hidden fact, such as undiscovered evidence or perjured testimony, which may result upon presentation in an acquittal. Smith v. Buchanan, 291 Ky. 44, 163 S.W.2d 5, 7; Sharpe v. Commonwealth, 292 Ky. 86, 165 S.W.2d 993; Elliott v. Com., 292 Ky. 614, 167 S.W.2d 703.

3. Apparently for the first time in this jurisdiction, less than six years ago, in Jones v. Commonwealth, 269 Ky. 779, 108 S.W.2d 816, a convicted defendant invoked the remedy of the ancient writ of error coram nobis to obtain a new trial after the doors of the courts of justice, conforming to the statutory and ordinary procedure, had been closed against him. We made reference to the history and purpose of that common law writ, which is to correct a final judgment by the same court in which it was rendered after the term had 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. See also 37 Harvard Law Review; 3 Am.Jur., Appeal and Error, Sec. 1276; 31 Am.Jur., Judgments, Sec. 798, et seq.; 24 C.J. S. Criminal Law,§ 1606. We held the procedure to be a part of the law of Kentucky and available in a proper case. Upon what seemed to us to be sound reasoning and sufficient authority, we ruled that it was not a proper process to obtain a new trial upon the ground of newly discovered evidence, embracing also the allegation of conviction upon perjured testimony, which was relied upon by Jones. We suggested his only relief was by Executive clemency. He then resorted to the Federal courts and claimed his rights under the Fourteenth Amendment to the Constitution of the United States relating to due process of law had been violated. The District Court heard testimony on the application of a writ of habeas corpus, stayed the execution of the defendant and issued a certificate of probable cause to permit a decision by the Circuit Court of Appeals. Upon the evidence and the frank admission of the Attorney General of a doubt of the justice of the judgment of conviction, and the concession that the then Governor of the Commonwealth had publicly declared he would adhere to his pledge not to exercise the pardoning power, the court concluded: "The appellant is not to be sacrificed upon the altar of a formal legalism too literally applied when those who from the beginning sought his life in effect confess error, when impairment of constitutional right may be perceived, and the door to clemency is closed." .

The case was remanded to the District Court with instructions to discharge the defendant form custody without prejudice to the right of the Commonwealth to take further consistent proceedings. Jones v. Commonwealth, 6 Cir., 97 F.2d 335. We are informed he was never tried again. Parenthetically, it seems to us the Supreme Court does not go...