Chesser v. State

• Decision Date: 16 October 1926
• Citation: 92 Fla. 754,109 So. 906
• Parties: CHESSER v. STATE.
• Court: Florida Supreme Court

109 So. 906

92 Fla. 754

CHESSER v. STATE.

Florida Supreme Court, Division B.

October 16, 1926

Rufus Chesser was convicted of first degree murder, the conviction affirmed (109 So. 599), and petitions for an order directing and authorizing the judge of the Fourth judicial circuit to entertain an application for a writ of error coram nobis.Petition denied.

Syllabus by the Court

SYLLABUS

The matters that may be properly presented in an application for a writ of error coram nobis are such as, if presented, would have prevented a conviction; not such as, if presented and overruled, would compel a reversal of the judgment and a new trial because of error committed.

The prejudice of a juror was not a fact that entered into the guilt or innocence of the defendant, and would not have prevented the judgment, if it had been made known to the court on the examination of the juror.If the question had been presented, the juror would probably have been excused the trial would have proceeded with another juror, a verdict of guilty might have been returned, and sentence could have been properly pronounced on that verdict.

The writ of coram nobis will not lie from a conviction in a felony case because one or more of the jurors on his or their voir dire swore falsely concerning his or their qualifications as jurors, although discovery of such prejudice was not made until after conviction.

COUNSEL

McNamee & Wilson, of Jacksonville, for plaintiff in error.

J.B. Johnson, Atty. Gen., and Roy Campbell, Asst Atty. Gen., for the State.

OPINION

PER CURIAM.

The plaintiff in error filed a petition in this court, praying for an order to be directed to the judge of the Fourth judicial circuit of Florida authorizing such judge to entertain an application for a writ of error coram nobis; the judgment in the cause having been affirmed by this court.109 So. 599.

The petition is based on the allegation that a certain juror who qualified and was accepted as one of the panel to try the cause wherein the plaintiff in error was convicted of murder in the first degree had, prior to the time of the trial expressed an opinion adverse to the accused, which fact, at the time of the trial, was not known to the accused or to his attorney, and which the proposed juror concealed from the knowledge of the court and from the knowledge of the accused and his attorneys.

The history and the office of the writ of coram nobis are fully discussed in the able opinion prepared for this court by Mr Justice Whitfield in the case of Lamb v. State, filed March 1, 1926.And the cases in which the writ had been denied when sought under facts like those alleged in this petition, are there cited.

In 36 A.L.R., notes, beginning on page 1444, citing the case of State v. Choquette,109 Kan. 780, 202 P. 68, andHamlin v. State,67 Kan. 724, 74 P. 242, it is said:

"Where a part of the jurors swore, on their voir dire, that they had not formed or expressed any opinion as to the merits of the case or the guilt of the defendant, and, after the conviction, it was discovered that these jurors had, before the trial, expressed a belief of the defendant's guilt and their determination to convict him, it was held that, although the writ of error coram nobis was available as a remedy in that state, it would not lie in such cases, inasmuch as the proper remedy was a motion for a new trial, as provided for by statute.In the Hamlin Case [67 Kan. 724, 74 P. 242]the court states: 'At common law no new trial was authorized or allowed in cases of felony, and hence the writ of coram nobis was the only method of correcting a matter of fact.The procedure provided by our Code largely supersedes that writ, and a question of fact, such as the qualification of a juror,

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