Hawk v. State

• Decision Date: 10 November 1949
• Docket Number: 32587.
• Citation: 39 N.W.2d 561,151 Neb. 717
• Parties: HAWK v. STATE.
• Court: Nebraska Supreme Court

39 N.W.2d 561

151 Neb. 717

HAWK v. STATE.

No. 32587.

Supreme Court of Nebraska

November 10, 1949

[Copyrighted Material Omitted]

Syllabus by the Court.

1. 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, R.S.1943.

2. The purpose of a writ of error coram nobis is to enable the court to recall some adjudication, made while some fact existed which, if before the court, would have prevented rendition of the judgment, and which, through no fault of the party, was not presented.

3. Where the facts alleged are known to the applicant before or during the progress of the trial, or could have been known by the exercise of reasonable diligence, the writ must be denied.

4. Proceedings to obtain a writ of error coram nobis are essentially civil in character.

5. The petitioner for a writ of error coram nobis carries the burden of proof in a collateral attack on a judgment which he seeks to have declared a nullity.

6. Upon an application for a writ of error coram nobis, the court will not weigh conflicting testimony adduced in the original trial nor pass upon the credibility of witnesses where the jury has determined the same.

7. The common-law writ of error coram nobis is not a substitute for the statutory remedy of a writ of error under the Nebraska criminal procedure.

8. The rights guaranteed to an accused in a criminal prosecution by Article I, section 11, of the Constitution of Nebraska, are all personal privileges and not having been conferred from any consideration of public policy are not inalienable but may be insisted upon or abandoned at pleasure.

9. No standard length of time must elapse before defendant in a capital case should go to trial, and each case, and facts surrounding it, provides its own yardstick.

10. Courts do not deny due process just because they act expeditiously, and if no witnesses are suggested or information furnished that would possibly lead to some material evidence or witnesses, the mere failure to delay in order to investigate would not be a denial of due process.

11. In passing upon claims of denial of due process of law contrary to the Fourteenth Amendment in state criminal trials, doubt should be resolved in favor of the integrity, competence, and proper performance of their official duties by the judge and the prosecuting attorney lawfully chosen to discharge serious public responsibilities under their oaths of office.

12. Due process of law requires only that the accused be given sufficient notice of the nature of the charge against him in order that he may prepare a defense and plead the judgment as a bar to any subsequent prosecution for the same offense.

13. The writ of error coram nobis will not lie to vacate a judgment of conviction and secure a retrial of the accused because of his inability, within statutory limits of time, to prepare a record on appeal to this court showing the errors of which complaint was made. Such writ lies only to correct errors of fact in ignorance or disregard of which the judgment was pronounced.

Matthews, Kelley, Matthews & Delehant, Omaha, for plaintiff in error.

James J. Fitzgerald, Joseph P. Inserra, Omaha, James H. Anderson, Atty. Gen., C. S. Beck, Deputy Atty. Gen., Robert A. Nelson, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE Justice.

This is a proceeding in error coram nobis begun in the district court for Douglas County to vacate a judgment of conviction of Henry Hawk, and to secure for him a retrial. The district court denied the writ. From the order of denial and the overruling of the motion for new trial, this proceeding in error was instituted.

The principal assignments of error relied upon by the petitioner are: (1) The court erred in failing to find that the petitioner was, when originally tried and convicted of murder in the first degree, denied his constitutional right to be represented by competent counsel; (2) that the petitioner was denied his constitutional right to have a reasonable time to confer with counsel, to examine the charge against him, to procure and subpoena witnesses, to examine the record of the preliminary hearing, and for counsel of record in his behalf to adequately and properly prepare his defense; (3) the court erred in holding that the petitioner was not prevented from prosecuting the writ of error to this court in the original case; and (4) in consideration of the foregoing assignments of error, the petitioner was denied due process of law as provided for by the Fourteenth Amendment to the Constitution of the United States, and denied due process of law as provided for by Article I, section 3 of the Constitution of the State of Nebraska.

At the outset we deem it appropriate to first make the legal distinction between a writ of error and a writ of error coram nobis, which should be borne in mind in the determination of this proceeding in error.

The writ of error 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, modified, or reversed, while the writ of error coram nobis 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. See 3 Am.Jur., Appeal and Error, § 1276, p. 766.

The common-law writ of error coram nobis is not a substitute for the statutory remedy of a writ of error under the Nebraska criminal procedure. See, Carlsen v. State, 129 Neb. 84, 261 N.W. 339, certiorari denied, 293 U.S. 607, 55 S.Ct. 123, 79 L.Ed. 698; Newcomb v. State, 129 Neb. 69, 261 N.W. 348; Swanson v. State, 148 Neb. 155, 26 N.W.2d 595, certiorari denied, 331 U.S. 863, 67 S.Ct. 1759, 91 L.Ed. 1869.

The purpose of the writ of error coram nobis should be noted. The writ of error coram nobis is to enable the court to recall some adjudication, made while some fact existed which, if before the court, would have prevented rendition of the judgment, and which, through no fault of the party, was not presented. See Swanson v. State, supra.

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, now section 49-101, R.S.1943. See Carlsen v. State, supra.

Where the facts alleged are known to the applicant before or during the progress of the trial, or could have been known by the exercise of reasonable diligence, the writ must be denied. See, Swanson v. State, supra; Dobbs v. State, 63 Kan. 321, 65 P. 658; 24 C.J.S., Criminal Law, § 1606, (6), p. 154.

The purpose of the writ of error coram nobis is not, and never was, to permit a defendant to retry his case again and again, but, as pointed out in the previously cited authorities, in certain cases it provides a corrective judicial process that the Constitution guarantees shall not be denied. See, Swanson v. State, supra; Carlsen v. State, supra.

In considering the writ of error coram nobis the court will take cognizance of and consider the entire record of the original trial. See State ex rel. Cutsinger v. Spencer, 219 Ind. 148, 41 N.E.2d 601.

The proceedings for the writ of error coram nobis are civil in character. See, Newcomb v. State, supra; 24 C.J.S., Criminal Law, § 1606, p. 144.

The petitioner for a writ of error coram nobis carries the burden of proof in a collateral attack on a judgment which he seeks to have declared a nullity. See Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Wright v. Johnston, D.C., 77 F.Supp. 687.

With the foregoing authorities in mind we proceed to the petitioner's assignments of error heretofore designated Nos. 1, 2, and 3.

In connection with the aforesaid assignments of error the following legal fundamentals should be noted: Article I, section 11 of the Constitution of Nebraska provides: 'In all criminal prosecutions the accused shall have the right to appear and defend in person or by counsel, to demand the nature and cause of accusation, and to have a copy thereof; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf; and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.' Section 29-1803, R.S.1943, provides for the assignment of counsel for an accused charged with a capital offense or an offense punishable by imprisonment in the penitentiary, and for counsel to have access to the prisoner at all reasonable hours.

It has long been the rule in this state that all of the rights guaranteed by Article I, section 11 of the Constitution of Nebraska are personal privileges and not having been conferred from any consideration of public policy are not inalienable but may be insisted upon or abandoned at pleasure. See, McCarty v. Hopkins, 61 Neb. 550, 85 N.W. 540; In re Application of Carper, 144 Neb. 623, 14 N.W.2d 225; Duggan v. Olson, 146 Neb. 248, 19 N.W.2d 353, certiorari denied, 327 U.S. 790, 66 S.Ct. 803, 90 L.Ed. 1016; Kissinger v. State, 147 Neb. 983, 25 N.W.2d 829.

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