Boyd v. Smyth
| Decision Date | 20 October 1925 |
| Docket Number | 37147 |
| Parties | A. J. BOYD, Plaintiff, v. JAMES D. SMYTH, Judge, Respondent |
| Court | Iowa Supreme Court |
Certiorari to Henry District Court.--JAMES D. SMYTH, Judge.
APPLICATION for writ of error coram nobis was filed with the respondent on the 29th of May, 1925, which, on hearing, was refused, and this ruling is now before us by writ of certiorari.
Affirmed.
Lloyd L. Duke, for plaintiff.
Ben J Gibson, Attorney-general, Neill Garrett, Assistant Attorney-general, and John G. Barwise, for respondent.
ALBERT J. FAVILLE, C. J., and EVANS, STEVENS, DE GRAFF, and MORLING, JJ., concur. VERMILION, J., took no part.
The plaintiff, A. J. Boyd, was indicted in 1921 for the crime of receiving stolen property. The trial resulted in a conviction, which was appealed from and reversed. State v. Boyd, 195 Iowa 1091, 191 N.W. 84. He was again tried and convicted, and this was reversed on appeal. State v. Boyd, 196 Iowa 226, 194 N.W. 177. On the third trial, the conviction was affirmed. 199 Iowa 1206, 200 N.W. 205. A petition for rehearing was filed on the last appeal, in which in was sought to show the matters of which complaint is made in this application for the writ. This court refused to consider the same, and the petition for rehearing was overruled on April 8, 1925. The plaintiff, Boyd, then filed his application for a writ of error coram nobis with the Hon. James D. Smyth in the Henry County district court on the 29th day of May, 1925, setting up as a basis therefor tat one Glen Hoskinson, who, it is claimed, was the principal witness on the part of the State, and without whose testimony conviction could not have been made, is now insane, and a patient at the Iowa state hospital at Mt. Pleasant; that said witness was insane at the time he gave his testimony which led to the conviction of the plaintiff herein; that neither the plaintiff herein nor his attorney knew or discovered the fact of the insanity of the said witness until the matter was submitted to this court; that the insanity of said witness was not in issue in the trial of said cause, because it was not then known to the plaintiff herein, or to his counsel.
The respondent herein denied the application of plaintiff for said writ, and the same is now before us on certiorari. It is the contention of the respondent herein, first, that the common-law writ coram nobis is not available under Iowa practice; second, that, if available, the facts herein do not warrant the issuance of said writ.
The writ coram nobis, sometimes called coram vobis, was a common-law writ which originated in the practice in England prior to the days when the parliamentary enactment authorized the writ of error. The purpose of such writ was to correct or vacate a judgment in the court in which it was rendered, on account of matters not appearing on the face of the record. 2 Ruling Case Law 305 states:
"The distinction between an ordinary writ of error and a writ of error coram nobis is that the former is brought for a supposed error in law apparent on the record, and takes the case to a higher tribunal, where the question is to be decided and the judgment, sentence or decree is to be affirmed or reversed; while the latter is brought for an alleged error in fact not appearing on the record, and lies to the same court, in order that it may correct the error which it is presumed would not have been committed, had the fact in the first instance been brought to its notice."
It cannot be used for the purpose of correcting errors at law. 34 Corpus Juris 392, Section 602. It was limited to errors of fact not appearing on the face of the record, which fact was unknown to the court, and which, if known in season, would have prevented the rendition and entry of a judgment challenged. 34 Corpus Juris 393, Section 605, and cases therein cited.
After the English parliament passed the act authorizing writs of error in their court, this writ coram nobis fell into disuse, and has become entirely obsolete in their practice. It has been used very little in the United States, and in the three or four states where it has been recognized as a common-law writ, its use has been very limited. In the English practice, the distinction between the writs coram nobis and coram vobis depended-upon the court in which the proceeding existed. If in the king's bench court, it was called coram nobis, and if in the common pleas court, coram vobis.
In our search we have found three states which recognize the writ because of its being provided for by statute in those states. Aside from this, in a labored search, we have been unable to find that it is being generally used in any other of the states of the Union.
We are met with a primary question as to whether, under any circumstances, the writ coram nobis is available under Iowa practice. This writ was available by Chapter 28 of the Territorial Laws of Iowa, 1843-44, the act being approved on February 15, 1844. A careful reading of this chapter leads to the conclusion that the enactment was not as broad as the English rule governing this writ. It appears that the legislature intended it to apply only in civil actions. This legislation became a part of the Code of 1851, appearing therein as Chapter 112. While this statute was in effect, two civil cases were passed on by this court: one, Mears v. Garretson, 2 G. Greene 316; the other Mckinney v. Western Stage Co., 4 Iowa 420. Neither of these cases is of any aid in determining the question before us.
When the Revision of 1860 was adopted, this legislation was entirely omitted. It is settled law that, where statutes are revised, and some parts of the original are omitted, the parts omitted cannot be revived by construction, but are considered annulled. 36 Cyc. 1080, and cases therein cited. Hence it must follow that the omission of this chapter was, by implication, intended as a repeal thereof; but we need not rely upon a repeal by implication, for the reason that, in the Revision of 1860, Chapter 4, Section 31, we find the following provision:
"All public and general acts passed prior to the present session of the general assembly, and all public and special acts the subjects whereof are revised in this Code, or which are repugnant to the provisions thereof, are hereby repealed, subject to the limitations and with the exceptions herein expressed."
Certain limitations and exceptions are provided, none of which in any way affect the question involved. It is apparent, therefore, that, under our practice, from 1844 to 1860 the writ coram nobis was not only recognized, but specifically provided for by law.
It is held in Buck v. Spofford, 31 Me. 34, that the omission thus made raises a presumption that a change is intended in the law; and we are of the opinion that not only the omission of that chapter, but also the above quoted section from the said Revision of 1860, repealing the same, show on their face that it was the legislative intent that the writ coram nobis should no longer be used in the state of Iowa. This is the logical conclusion that must follow, for the reason that, in the Revision of 1860, when it omitted the chapter on coram nobis that was formerly in the Code of 1846, it enacted what has now grown into Chapter 552 of the Code of 1924. The provisions of this chapter are broad enough to cover all cases arising which seek to vacate or modify a judgment; but this is, and always has been, a chapter in the code of civil procedure, and has afforded a remedy in all instances where a judgment could be vacated or modified. Our code of criminal procedure, however, has no provision corresponding to the aforesaid Chapter 552.
Chapter 652 of the Code of 1924 defines a new trial as follows:
Section 13944 enumerates the grounds of a motion for a new trial. The eighth ground thereof reads as follows:
"When from any other cause the defendant has not received a fair and impartial trial."
It is quite apparent, therefore, that the complaint on which this writ is sued out, if available at all, would be covered by the eighth ground above quoted. It is not available to the applicant herein, however, because Section 13943 provides that it must be made before judgment. No provision is made in the criminal code for filing a motion for new trial, or to vacate a judgment, after sentence and judgment have once been pronounced and entered of record. This shows that the legislature recognized and had in mind that there might be causes for the granting of a new trial, if in fact the defendant had not received a fair and impartial trial; but the legislature has limited the right of the defendant to raise such question, and by the aforesaid section has provided that he must make application before judgment. The legislature having so limited this matter, it does not seem to us that this court has power to override the act of the legislature and to hold, as we are urged by the applicant herein, that there is a right to have the judgment reviewed by reason of some matter which shows that he has not had a fair and impartial trial.
In the states of the Union which adopted the common-law practice, this writ still seems to survive. Adler v. State, 35 Ark. 517; State v. Calhoun, 50 Kan. 523, 32 P. 38; In re Ernst, 179 Wis. 646 (192 N.W. 65); Trattner v. State, 185 Ind. 188 (113 N.E. 243).
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