Carlsen v. State

• Decision Date: 17 May 1935
• Docket Number: 29439.
• Citation: 261 N.W. 339,129 Neb. 84
• Parties: CARLSEN v. STATE.
• Court: Nebraska Supreme Court

261 N.W. 339

129 Neb. 84

CARLSEN v. STATE.

No. 29439.

Supreme Court of Nebraska.

May 17, 1935

Syllabus by the Court.

1. The common-law writ of error coram nobis has not been expressly abolished by statute.

2. In a case for the protection of a right or prevention of a wrong for which the Code does not provide, the former practice may be adopted so far as necessary to prevent a failure of justice.

3. The only method provided by statute for securing a new trial in a criminal case is by motion filed at the term and within three days after the verdict.

4. No statute provides a corrective judicial process to remedy the wrong when newly discovered evidence casts doubt on the correctness of the verdict or establishes defendant's innocence.

5. The statute authorizing a new trial in civil actions at a subsequent term on the ground of newly discovered evidence is not available in a criminal case.

6. Equity will not interfere for the purpose of granting a new trial in a criminal case on the ground of newly discovered evidence.

7. The district court possesses no inherent or common-law power to grant new trials in criminal cases on the ground of newly discovered evidence at a subsequent term to that at which the verdict of guilty is found.

8. Habeas corpus is not a proper remedy to secure one's release from prison on the ground that an error of fact resulted in a wrongful conviction.

9. Expressions in opinions must be interpreted with reference to the facts and issues determined therein.

10. The right to apply for a pardon to an administrative board does not meet the requirements of the constitutional provision guaranteeing a remedy for an injury by due process of law.

11. The pardoning power is not a corrective judicial process to remedy a wrong.

12. The common-law writ of error coram nobis to bring into the record facts which were unknown to the defendant at the time of trial through no lack of reasonable diligence on his part, which, if known at the time of the trial, would have resulted in a different judgment, exists in this state under section 49-101, Comp. St. 1929.

13. Every person for any injury done him in his lands, goods person or reputation shall have a remedy by due course of law.

14. Coram nobis does not lie to bring into the record facts known to the petitioner before judgment.

15. A general demurrer admits facts well pleaded, but not the conclusions of the pleader.

Error to District Court, Lancaster County; Broady, Judge.

Proceedings on the application of Carl C. Carlsen for a writ of error coram nobis. To review an order denying the application, the applicant brings error.

Affirmed.

Pardoning power is not corrective judicial process to remedy a wrong.

Frank A. Peterson and Perry, Van Pelt & Marti, all of Lincoln, and Walter D. James, of McCook, for plaintiff in error.

Wm. H Wright, Atty. Gen., and Edwin Vail, Asst. Atty. Gen., for the State.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

DAY Justice.

This is an appeal from an order of the Lancaster county court denying an application for a writ of error coram nobis. Carlsen was tried before and convicted by a jury in the district court of the crime of forgery. A motion for a new trial was overruled, and he was sentenced to the penitentiary and to pay a fine. He prosecuted a proceeding in error to this court, the result of which was an affirmance of the judgment. Carlsen v. State, 127 Neb. 11, 254 N.W. 744.He then applied to the Supreme Court of the United States for a writ of certiorari, which was denied. Thereafter he made application to the trial court for an ancient common-law writ of error coram nobis. The trial court sustained the state's demurrer to the petition for that it did not state facts sufficient to justify the issuance of the writ of error coram nobis. Our statutes do not provide for such a writ, and there is no provision expressly abolishing the common-law writ.

In 1855 the first Legislature of the territory of Nebraska adopted as a Civil and Criminal Code parts of the Code of Iowa. This code provided for a writ of error coram nobis. Section 540 provided: " Any person aggrieved by the judgment of the district court by reason of any material error in fact, may within one year after the rendition thereof obtain from the clerk of the court which rendered the judgment a writ of error coram nobis returnable at the next term of said court." Laws 1855, p. 108. This would appear to be a part of the Civil Code applicable to civil actions. This section was recently discussed in Boyd v. Smyth, 200 Iowa, 687, 205 N.W. 522, 523, 43 A.L.R. 1381.It was there said in an opinion written by Albert, J.: " 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."

In this connection, section 524 of the Criminal Code, Laws 1855, p. 292, provides: " The only mode of reviewing a judgment or order in a criminal action, is by a writ of error as prescribed in this chapter." Then follow specific provisions as to writs of error, and a writ of error coram nobis is not a prescribed remedy. This would seem to be an expression of legislative intent to abolish the writ as to criminal cases.

However, in 1857, the territorial Legislature repealed the entire Civil and Criminal Code previously adopted from Iowa by the following act:

" Section 1. Be it enacted by the Council and House of Representatives of the Territory of Nebraska, That an act entitled ‘ An act adopting certain parts of the Code of Iowa,' approved March 16, 1855, and also an act entitled ‘ An act relative to criminal laws,' approved March 15, 1855, be and the same are hereby repealed.

" Sec. 2. This act take effect and be in force from and after its passage." This act passed the House by two-thirds vote over the Governor's veto, 24 to 2, and passed the council by a vote of 12 to 1 over the Governor's veto. See Laws 1857, p. 137. While the date of the passage of this repealing act is not given, on page 295, Laws 1857, appears this joint resolution: " Resolved, by the Council and house of Representatives of the Territory of Nebraska, That all Laws passed at the present Session of the General Assembly shall take effect on the first day of June next, unless otherwise provided in the Acts passed. Approved February 13, 1857."

The Supreme Court of Iowa in Boyd v. Smyth, supra, held that in a statutory revision the parts of the original omitted are to be considered annulled. Since the Iowa Legislature in the adoption of revised statutes omitted the chapter relating to the writ of error coram nobis, it was determined that the remedy had been abolished.

But the legislative history in Nebraska is not like that of Iowa. As stated, the entire Code, both Civil and Criminal was abolished in 1857. The statute was not revised. It was not until November 1, 1858, that a new Code was approved. This new Code did not provide for writ of error coram nobis in either civil or criminal cases. It did not specifically abolish the writ, but was silent as to it. It did not provide, as the former Code, that the only mode of reviewing a judgment or order in a criminal case was as provided by the Code. It did not provide for a review of criminal cases by a writ of error. There is nothing in this Code which can be said to abolish the writ of error coram nobis. The Code of 1858 was superseded by the Revised Statutes of 1866 which were effective when Nebraska was admitted as a state to the Union in 1867. The chapter entitled Schedule, section 1, Constitution of 1866, provided: " That no inconvenience may arise from the change of territorial government to a State government, it is declared that all rights, suits, actions, prosecutions, judgments, recognizances, claims, and contracts, both as respects persons and bodies-corporate, shall continue and be enforced as if no change had taken place, and all laws now in force shall remain in force until altered, amended, or repealed by the legislature."

Thus it is evident not only that the common-law writ of error coram nobis was not expressly abolished by statute, that the statutes negative any such legislative intent. The Revised Statutes of 1866, c. 7, § 1, provided: " So much of the common law of England as is applicable, and not inconsistent with the constitution of the United States, with the organic law of this territory, or with any law passed or to be passed by the legislature of this territory, is adopted, and declared to be law within said territory." This statute has never been repealed and is now section 49-101, Comp. St 1929. The Legislature by the adoption of the Revised Statutes of 1866 made a further declaration, as follows: " If a case ever arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this code, the practice heretofore in use may be adopted so far as may be necessary to prevent a failure of justice." Rev . St. 1866 (Code Civ. Proc.) tit. 29, c. 6, § 901, p. 550. This has never been amended or repealed and is now section 20-2225, Comp. St. 1929. These territorial statutes by the adoption of the Constitution of 1866 became the law of the state. The new Constitution provided: " All courts shall be open, and every person for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and justice administered without denial or delay." Const. 1866, art. 1, § 9. This section now appears as section 13, art. 1, Const. 1920. These statutory and constitutional provisions...