Bernard v. State

• Decision Date: 01 April 1949
• Docket Number: 130.
• Citation: 65 A.2d 297,193 Md. 1
• Parties: BERNARD v. STATE.
• Court: Maryland Court of Appeals

65 A.2d 297

193 Md. 1

BERNARD v. STATE.

No. 130.

Court of Appeals of Maryland

April 1, 1949

Appeal from Circuit Court, Anne Arundel County; James E. Boylan Jr., Chief Judge, and James Clark, Judge.

Clarence B. Bernard was convicted for riot and assault, and he petitions for writ of error coram nobis. From an order dismissing the petition, he appeals.

Order affirmed.

Hall Hammond, Atty. Gen., Harrison L. Winter, Asst. Atty. Gen and James C. Morton, Jr., State's Atty., of Annapolis for appellee.

Before DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.

DELAPLAINE Judge.

This appeal was brought here by Clarence B. Bernard from an order of the Circuit Court for Anne Arundel County dismissing his petition for a writ of error coram nobis.

On March 26, 1943, petitioner was convicted of larceny by the Circuit Court for Montgomery County and was sentenced to serve four years in the Maryland House of Correction. On June 2, 1945, while he was serving that sentence, a riot occurred in the House of Correction, and he was one of the prisoners who were tried by the Circuit Court for Anne Arundel County for riot and assault. On August 2, 1945, he was convicted thereof and he was given an additional sentence of five years. He claims that he was not lawfully tried and convicted.

First appellant alleges that he was prosecuted for the riot upon information given to the warden of the House of Correction by five other inmates; that the accusations made by them were founded upon malice; that, as a result of these false accusations, he was charged with riot and assault upon seven officials at the House of Correction; and that these seven men will testify that they were never assaulted by appellant at any time. He further alleges that he was indicted as a result of false testimony given to the grand jury; and that the warden refused to furnish him with a copy of the indictment, although the warden did read the indictment to him.

Secondly, appellant alleges that he wanted to send a telegram to his wife to ask her to employ counsel for him, and he delivered the message to the warden on July 11, 1945, but it was not read to his wife until July 25, only a few days before his trial. He alleges that he did not request the Court to appoint counsel, but was forced to accept counsel appointed by the Court, and his counsel would not allow him to call witnesses in his defense. He also alleges that there was no evidence to prove that he committed the offenses for which he was indicted; and that, after he was convicted, he wanted to appeal, but the warden destroyed his notice of appeal.

The purpose of the writ of error coram nobis, which is an old common-law writ recognized in this State, is to bring before the court a judgment previously rendered by it for the purpose of modification on account of some error of fact which affected the validity and regularity of the proceedings, and which was not brought into issue at the trial of the case. The writ differs from an ordinary writ of error in that it does not remove the case to a higher court for review, and it lies only for errors of fact not apparent of record, instead of for errors of law apparent of record. It does not lie to permit a review of the evidence given in connection with the issues actually tried in order to determine whether witnesses who actually testified before a jury sworn on those issues testified falsely. The writ will lie to set aside a judgment obtained by fraud, coercion, or duress, or where a plea of guilty was procured by force violence, or intimidation, or where at the time of the trial the defendant was insane, when such facts were not known to the trial court when the judgment was entered, or where the accused was prevented by fraud, force, or fear from...