Berry v. State, 24729.

• Decision Date: 18 December 1930
• Docket Number: No. 24729.,24729.
• Citation: 173 N.E. 705,202 Ind. 294
• Parties: BERRY v. STATE.
• Court: Indiana Supreme Court

202 Ind. 294

173 N.E. 705

BERRY

v.STATE.

No. 24729.

Supreme Court of Indiana.

Dec. 18, 1930.

Appeal from Delaware Circuit Court.

On petition for rehearing.

Petition overruled.

For former opinion, see 165 N. E. 61.

F. Clayton Mansfield and Francis A. Shaw, both of Muncie, for appellant.

James M. Ogden, Atty. Gen., and E. Burke Walker, Deputy Atty. Gen., for the State.

WILLOUGHBY, J.

The appellant filed a petition for rehearing and names eight reasons in support of said petition. The first seven reasons named in said petition have been fully discussed in the opinion (165 N. E. 61), and need not be further considered. The eighth reason assigned is one which was not assigned as error in a motion for a new trial, and was not presented in the hearing of this case on appeal. This eighth cause is also set forth in a paper which the appellant has denominated a petition for writ of coram nobis. To that petition appellee demurs, and says that the petition does not state facts sufficient to entitle the appellant to the writ of error coram nobis.

[1][2][3] The writ coram nobis is based upon error of fact, as distinguished from the writ of error which is based upon error of law. It always has been, and must now be, a part of the proceedings in a case to which it refers, and must be filed in the court that rendered the judgment. Matters which were known at the time of the trial might have been submitted to the trial court and adjudicated, and cannot now be presented to this court by a writ of error coram nobis. Partlow v. State, 191 Ind. 657, 134 N. E. 483; 5 Ency. Pleading & Practice, p. 29.

In Sanders v. State, 85 Ind. 318, 329, 44 Am. Rep. 29, the court said: “It is our opinion that the courts have the power to issue writs in the nature of the writ coram nobis, but that the writ can not be so comprehensive as at common law, for remedies are given by our statute which did not exist at common law- the motion for a new trial and the right of appeal-and these very materially abridge the office and functions of the old writ. These afford an accused ample opportunity to present for review questions of fact, arising upon or prior to the trial, as well as questions of law; while at common law the writ of error allowed him to present to the appellate court only questions of law. Under our system all matters of fact reviewable by appeal, or upon motion, must be presented by motion for new trial, and can not be made the grounds of an application for the writ coram nobis. Within this rule must fall the defence of insanity as well as all other defences existing at the time of the commission of the crime. Within this rule, too, must fall all cases of accident and surprise, of verdicts against evidence, of newly discovered evidence, and all like matters.”

The petition for a writ coram nobis in the instant case proceeds upon the theory that appellant's coconspirator, Teague, was acquitted of the offense of conspiracy with this appellant. The record shows that he was not acquitted, but shows that this appellant's counsel at the time of the trial cross-examined Teague, who was a witness for the state, against this appellant, and such cross-examinationshows, together with other matters appearing in the record, that the appellant knew that Teague was claiming immunity from prosecution for the offense for which this appellant was being tried. The appellant and Teague were charged with unlawfully, knowingly, and feloniously uniting, combining, conspiring, and confederating and agreeing with each other, with the object and purpose and with the unlawful and felonious intent to then and there control a still and distilling apparatus for the unlawful manufacture of intoxicating liquor in violation of the laws of the state of Indiana.

The record shows that this appellant procured a separate trial by filing an affidavit for a change of venue from the judge before whom the cause was pending. It shows that, in the trial of the case against this appellant, his coconspirator in said action, Orville Teague, testified against this appellant, and it was upon said testimony, largely if not wholly, that this appellant was convicted. All this was known by the appellant and his attorney at the time of the trial of this appellant.

At the time of this trial, sections 2252, 2273, and 2755, Burns Ann. St. 1926, were in full force and effect. Under these statutes appellant's...