Ernst v. State
| Decision Date | 05 June 1923 |
| Parties | ERNST v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Municipal Court of Milwaukee County; E. T. Fairchild, Judge.
Valentine Ernst was convicted of crime, and, from an order denying a writ of error coram nobis, he brings error. Affirmed.
Plaintiff in error filed a petition in the municipal court of Milwaukee county, praying for the issuance of a writ of error coram nobis to review his conviction and sentence on a charge of incest with his daughter. Previously he had filed a petition in this court, upon the hearing of which it was determined that the municipal court was the proper court to which to make application for the issuance of the writ. See Ernst v. State (Wis.) 192 N. W. 65. After a hearing in the municipal court upon affidavits and sworn statements, the court refused to issue the writ, and the plaintiff in error sued out a writ of error to review the correctness of the order refusing to issue the writ.Raymond W. Frank, of Milwaukee, for plaintiff in error.
Herman L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Geo. A. S. Shaughnessy, Dist. Atty., and Eugene Wengert, Asst. Dist. Atty., both of Milwaukee, for the State.
VINJE, C. J. (after stating the facts as above).
[1] A writ of error coram nobis lies to the court in which the case was tried to correct an error of fact that does not appear of record. It does not lie to correct an error of law. 2 R. C. L. 305. Nor does such a writ issue as a matter of right but as a matter of sound judicial discretion. Ernst v. State (Wis.) 192 N. W. 65. And it has been held that the decision of the trial court in refusing a writ is not reviewable. Tyler v. Morris, 20 N. C. 625, 34 Am. Dec. 395. But such a rule does not obtain in our state. We review discretionary orders and reverse if there has been an abuse of judicial discretion.
[2] We come, therefore, to the question, Did the trial court abuse his discretion in refusing to grant the writ? Plaintiff in errorclaimed by affidavit that he was led to plead guilty through the fact that he did not understand the English language and was told by the police officers that he should plead guilty. In addition to the plea of guilty, his daughter also gave testimony to the effect that plaintiff in error had had sexual intercourse with her a number of times. Now by affidavit she says she testified falsely on the trial. In opposition to these affidavits there are affidavits and sworn statements from the police officers and the interpreter, who interpreted between the court and plaintiff in error that he was not induced to plead guilty by threats or otherwise, nor was he ignorant of the charge against him or of the nature and effect of his plea. It appears that most of the police officers fluently spoke German, which was the native language of the plaintiff in error, and they say the nature of the charge was explained to him as well as the effect of a plea of guilty, and that he understandingly and voluntarily pleaded guilty.
[3] Upon such a showing we cannot say that the court abused its discretion in refusing to grant the writ. On the contrary, it exercised a sound judicial discretion. Under our system of criminal procedure permitting a defendant to move for a new trial, to test the correctness of the sentence by writ of error or by writ of habeas corpus, the...
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