Dantzic v. State

• Decision Date: 30 July 1971
• Docket Number: No. 113,113
• Court: North Carolina Supreme Court
• Parties: Susan DANTZIC, Petitioner, v. STATE of North Carolina, Respondent.

Page 563

182 S.E.2d 563

279 N.C. 212

Susan DANTZIC, Petitioner, v. STATE of North Carolina, Respondent.

No. 113.

Supreme Court of North Carolina.

July 30, 1971.

Smith & Patterson, Greensboro, for petitioner appellant.

Atty. Gen. Robert Morgan, Rafford E. Jones, Staff Atty., Parks H. Icenhour, Asst. Atty. Gen., for the State.

BOBBITT, Chief Justice.

We granted Certiorari 'for the sole purpose of determining whether or not the Court of Appeals has authority to issue writ of error coram nobis.' In State v. Green, discussed below, this specific question was not presented to or considered by the Court of Appeals or by this Court. A brief resume of the factual situation and of the decisions in Green is appropriate.

In State v. Green, 8 N.C.App. 234, 174 S.E.2d 8 (1970), the appeal to the Court of Appeals was from Judge Godwin's denial of the petition for a writ of error Coram nobis filed by Green in the Superior Court of Rockingham County. Judge Godwin held the facts were insufficient to entitle Green to such writ. The Court of Appeals affirmed. Decision turned upon whether an indigent defendant, charged with willful failure to support his illegitimate children, was entitled to representation by court-appointed counsel. Whether the superior court had authority to issue the writ in a different factual situation was not discussed. Nor was there any discussion as to whether it was necessary to obtain leave from the Court of Appeals or from the Supreme Court as a prerequisite for an application for such writ.

Upon Green's appeal to this Court under G.S. § 7A--30, the decision of this Court, State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970), is stated in the following two paragraphs of the majority opinion, Viz:

We hold that defendant was charged with a petty offense and his trial without counsel did not violate his constitutional right to counsel under the Sixth and Fourteenth Amendments.

'Defendant's appeal, treated as a petition to this court for leave to file a petition in the Recorder's Court of Reidsville for a writ of error Coram nobis, is denied. The decision of the Court of Appeals affirming the denial order of Godwin, J., is Affirmed.'

Our decision in Green was based on these propositions: (1) To obtain relief by writ of error Coram nobis, Green was required to file his petition for such writ in the court in which the judgment had been rendered, namely, the Reidsville Recorder's Court; (2) Green was not entitled to file such petition as of right but only in the event the Supreme Court of North Carolina granted his application for permission to do so; and (3) Green could not avail himself of the procedures of our Post-Conviction Hearing Act, G.S. § 15--217 et seq., because he was not an 'imprisoned' person.

We deem it appropriate to reconsider the decisions of this Court on which the second proposition in Green was based.

'A writ of error coram nobis is a common-law writ of ancient origin devised by the judiciary * * *.' 24 C.J.S. Criminal Law § 1606(1), at p. 662 (1961). 'It lies to vacate or correct a judgment civil or criminal, for errors of fact as distinguished from errors of law. Application for the writ is made to the court which rendered the judgment.' Annot., 145 A.L.R. 818 (1943). Accord, 18 Am.Jur.2d Coram Nobis, etc., § 3 (1965); 24 C.J.S. Criminal Law § 1606(2) (1961). As indicated below, the writ was first recognized and applied in this jurisdiction in civil cases.

In Roughton v. Brown, 53 N.C. 393 (1861), Justice Battle stated: '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 upon 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 of fact, not appearing upon 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.' Accord, 18 Am.Jur.2d Coram Nobis, etc., § 2 at 452 (1965); Tyler v. Morris, 20 N.C. 625 (1839); Williams v. Edwards, 34 N.C. 118 (1851).

As succinctly stated in the first headnote in Roughton v. Brown, supra: 'A writ of error Coram nobis lies from any court of record returnable to itself, and not from a superior to an inferior court.'

In 5 Encyclopaedia of Pleading and Practice 27--28 (1896), it is stated that '(t)he office of the writ of Coram nobis is to bring the attention of the court to, and obtain relief from, errors of fact,' such as (1) the death of a party pending the suit and before judgment as in Tyler v. Morris, supra; (2) the infancy of a party who was not properly represented by guardian as in Williams v. Edwards, supra; or (3) coverture, where the common law disability still existed, as in Lassiter v. Harper, 32 N.C. 392 (1849), and in Roughton v. Brown, supra.

In civil cases, the writ of error became obsolete upon adoption in North Carolina of the Code of Civil Procedure. The remedy previously available by writ of error Coram nobis was superseded by the statutory remedy of motion in the cause. Lynn v. Lowe, 88 N.C. 478 (1883); Roberts v. Pratt, 152 N.C. 731, 68 S.E. 240 (1910); Massie v. Hainey, 165 N.C. 174, 177--178, 81 S.E. 135, 136--137 (1914).

Prior to the Taylor and Daniels cases, discussed below, we find no Criminal case in which this Court considered the writ of error Coram nobis. The cited decisions in civil actions contain no suggestion that permission from the Supreme Court was required before a motion for writ of error Coram nobis could be filed in the court in which the judgment under attack was rendered.

The second proposition in our decision in State v. Green, supra, is based upon the decisions in the Taylor and Daniels cases. In re Taylor (I), 229 N.C. 297, 49 S.E.2d 749 (1948); In re Taylor (II), 230 N.C. 566, 53 S.E.2d 857 (1949); State v. Daniels (I), 231 N.C. 17, 56 S.E.2d 2 (1949); State v. Daniels (II), 231 N.C. 341, 56 S.E.2d 646 (1949); State v. Daniels (III), 231 N.C. 509, 57 S.E.2d 653 (1950). It is noted here that the Taylor and Daniels cases were decided prior to our original Post-Conviction Procedure Act. Session Laws of 1951, Chapter 1083.

At January 1947 Term of Pitt Superior Court, Laurie D. Taylor, a minor, was indicted in each of seven cases. Three indictments charged the capital felony of burglary in the first degree; four charged the felony of larceny. Taylor pleaded guilty of burglary in the second degree in the burglary cases and judgments of life imprisonment were pronounced. He pleaded guilty in each of the larceny cases and judgments imposing prison sentences were pronounced.

On July 8, 1948, Taylor applied for and obtained a writ of Habeas corpus. In his application, he asserted that, although he was unable to employ counsel and was denied the benefit of counsel, he was required to plead to the seven indictments at January 1947 Term. At a hearing conducted July 19, 1948, on return of the writ of Habeas corpus, Taylor's applications for discharge was denied.

By letter dated September 7, 1948, Taylor requested a review by this Court of the judgment entered July 19, 1948, in the Habeas corpus proceeding. The Court treated the letter as a petition for Certiorari. Pending decision thereon, J. C. B. Ehringhaus, Jr., Esq., a member of the Raleigh Bar, was appointed to investigate the case and report his findings to Taylor and to the Court. In his report, Mr. Ehringhaus reviewed the allegations in Taylor's petition in the Habeas corpus proceeding, discussed various procedural questions and suggested Inter alia that Taylor's remedy might be by petition to the Supreme Court for permission to file a petition for writ of error Coram nobis in the Superior Court of Pitt County. The report included the following: 'If upon petitioner's verification and the record in the Habeas Corpus proceeding, a Prima facie showing of substantiality is made, the Court, in the exercise of its supervisory powers over inferior courts, could grant the petition and permit petitioner to proceed as above in Pitt Superior Court.'

This Court denied Certiorari. In re Taylor (I), supra. The opinion of Chief Justice Stacy contained the following: 'Where the defendant in a criminal prosecution, less than capital, is unable to employ counsel, the appointment of counsel for him is discretionary with the trial court. State v. Hedgebeth, 228 N.C. 259, 45 S.E.2d 563. It is otherwise, however, in capital cases. G.S. § 15--4; State v. Farrell, 223 N.C. 321, 26 S.E.2d 322. 'In a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.' Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 65, 77 L.Ed. 158, 84 A.L.R. 527.' In explanation of the denial of Certiorari, the opinion states: '(W)hatever the merits of the matter, it could avail the petitioner naught to review the judgment of Judge Burney dismissing the writ of Habeas corpus. Such writ is inappropriate under our procedure to obtain for the petitioner the relief which he seeks, and he has been so advised. In re Steels, 220 N.C. 685, 18 S.E.2d 132; State v. Dunn, 159 N.C. 470, 74 S.E. 1014; State v. Burnette, 173 N.C. 734, 91 S.E. 364. Not only is this so under the apposite decisions, but it is also provided by G.S. 17--4, that 'application to prosecute the writ shall be denied * * * (2) where persons are committed or detained by virtue of the final order, judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such final order, judgment or decree.' In re Schenck, 74 N.C. 607.' The Ehringhaus report...