Hendricks v. State

• Decision Date: 09 May 1956
• Docket Number: No. A-12195,A-12195
• Citation: 297 P.2d 576
• Parties: Robert HENDRICKS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 576

297 P.2d 576

Robert HENDRICKS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12195.

Criminal Court of Appeals of Oklahoma.

May 9, 1956.

Syllabus by the Court.

1. As distinguished from the traditional writ of error enabling an appellate court to review an error of law committed by a trial court, the writ of error coram nobis brings an error of fact directly before the trial court.

2. Where a conviction of crime has been affirmed by a judgment of an appellate court, the trial court is bound by the appellate court's mandate, and it is therefore appropriate to require a petitioner for a writ of error coram nobis to obtain from the appellate court permission to file the petition in the trial court.

3. The only relief which can be granted under petition for writ of error coram nobis is the setting aside of judgment and the granting of a new trial.

4. The functions of a writ of error coram nobis are limited to an error of fact for which the statute provides no other remedy, which fact did not appear of record or was unknown to the court when judgment was pronounced, and which, if known, would have prevented the judgment, and which was unknown and could not have been known to the party by the exercise of reasonable diligence in time to have been otherwise presented to the court, unless he was prevented from so presenting them by duress, fear, or other sufficient cause.

5. A writ of error coram nobis will not be granted except where it clearly appears that the petitioner had a valid defense in the facts of the case.

6. In order to vacate a judgment of conviction, through proceedings by writ of error, the defendant must not only aver in his petition that he is not guilty, but must also set forth the fact that he has a good and meritorious defense and the facts constituting the same in such detail that the court can weigh the substance of it.

7. Writ of error coram nobis will reach only matters not cognizable on motion for new trial, or in arrest of judgment, or on appeal.

8. In passing upon petition for writ of error coram nobis, court acts in exercise of a wise discretion and looks to reasonableness of allegations of petition and to existence of probability of truth thereof and grants leave only when it appears that proposed attack on judgment is meritorious.

9. On petition for writ of error coram nobis, Criminal Court of Appeals took full notice of record of proceedings wherein petitioner was convicted.

10. Where question of voluntary character of defendant's written confession had been considered in criminal proceedings against him and record in such proceedings did not indicate duress in making of written confession and there was proof aside from confession to sustain his conviction, defendant was not entitled to writ of error coram nobis on ground that confession was obtained by duress.

11. Trial record re-examined in connection with the papers in coram nobis proceedings, and allegations in petition found to be unreasonable and the probability of the truth thereof in view of the whole record is not such as to justify permission to apply to trial court for the writ.

Robert Hendricks was convicted in the District Court of Craig County of the crime of murder, sentenced to death in the electric chair, and judgment affirmed; thereafter defendant filed application for permission to file petition for writ of error coram nobis in the trial court. Petition denied.

James H. Mathers, Tupelo, Sid White, Oklahoma City, for plaintiff in error, petitioner.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., L. O. Thomas, County Atty. Craig County, Vinita, for defendant in error, respondent.

POWELL, Judge.

This is an original petition in this court for a writ of error coram nobis. ¹

The petitioner was charged and convicted of murder, and upon appeal to this court the judgment was affirmed. Hendricks v. State, Okl.Cr., 296 P.2d 205.

Jurisdiction to grant writs of error coram nobis, if meritorious cause stated, lies in the court that rendered the judgment. 31 Am.Jur. (Judgments) p. 322, § 800; 24 C.J.S., Criminal Law, § 1606, b(2); Holford v. Alexander, 12 Ala. 280, 46 Am.Dec. 253, 259; Strang v. U. S., 5 Cir., 53 F.2d 820; Cook v. U. S., 1 Cir., 171 F.2d 567, certiorari denied 336 U.S. 926, 69 S.Ct. 647, 93 L.Ed. 1088; Smith v. State, 245 Ala. 161, 16 So.2d 315; Ex parte Lindley, 29 Cal.2d 709, 177 P.2d 918; Stephenson v. State, 205 Ind. 141, 179 N.E. 633, and 186 N.E. 293; State ex rel. Emmert v. Gentry, 223 Ind. 535, 62 N.E.2d 860, 161 A.L.R. 532; Coram Nobis, Common Law, Federal, Statutory with Forms, Frank, p 75.

The application for the writ was filed in this court after its opinion on appeal, but prior to issuance of mandate and while petition for rehearing was pending. There is authority for the view that after affirmance of a judgment, permission to apply in the trial court for a writ of error coram nobis must first be obtained from the appellate court. See Taylor v. Alabama, 335 U.S. 252, 68 S.Ct. 1415, 92 L.Ed. 1935; Garrison v. U. S., 5 Cir., 154 F.2d 106; Young v. U. S., 5 Cir., 138 F.2d 838; Strang v. U. S., 5 Cir., 53 F.2d 820; Lamb v. State, 91 Fla. 396, 107 So. 535; Washington v. State, 92 Fla. 740, 110 So. 259; Lake v. State, 101 Fla. 646, 135 So. 123; Chambers v. State, 113 Fla. 786, 152 So. 437; House v. State, 130 Fla. 400, 177 So. 705; Johnson v. State, 144 Fla. 87, 197 So. 721; Horne v. Bushell, 2 Strange 950, 93 Eng.Reprint 961.

We are in agreement with this view, and for the purpose of this hearing by reason of the circumstances presented, shall consider the verified petition as if there was attached an application for permission to file it in the trial court for a determination of the sufficiency of the same and perhaps an eventual review by this court. But to justify our referral to the trial court the petition would have to set forth facts making out a prima facie case for the writ. ²

On March 28, 1956 oral argument was heard in support of this court granting the writ. Petitioner was represented by Judge James H. Mathers and Sid White, Esq.; and Hom. Sam H. Lattimore, Assistant Attorney General, and L. O. Thomas, County Attorney of Craig County appeared for the State. No evidence was offered by petitioner, but the State presented affidavits controverting the allegations contained in petition, so that the presiding judge directed the State to file a response to the petition and to attach the affidavits the Attorney General then had in court, together with any additional ones desired covering the factual matters not shown by the record on appeal but argued pro and con by counsel.

We have now before us the verified petition, a response by the State, attached to which are affidavits from ten different persons controverting various allegations in the petition, together with a transcript of all minutes made at trial concerning appointment of attorneys to defend petitioner, the conduct of the trial, etc. The petitioner has filed a verified reply with two additional affidavits by himself.

This court has never caused the granting of a writ of error coram nobis, although a number of cases have received its consideration. State ex rel. Mitchell v. Swindall, 1925, 33 Okl.Cr. 210, 241 P. 456; State ex rel. Attorney General v. Hurst, 59 Okl.Cr. 220, 57 P.2d 666; State ex rel. Burford v. Sullivan, 86 Okl.Cr. 364, 193 P.2d 594; Gibson v. State, 87 Okl.Cr. 260, 197 P.2d 310; Ex parte Hinley, 94 Okl.Cr. 267, 234 P.2d 947; In re Ballard, 95 Okl.Cr. 89, 240 P.2d 455; Ex parte Tidwell, 95 Okl.Cr. 53, 239 P.2d 524.

Title 22 O.S.1951 § 9 provides:

'The procedure, practice and pleadings in the courts of record of this State, in criminal actions or in matters of criminal nature, not specifically provided for in this code, shall be in accordance with the procedure, practice and pleadings of the common law.'

Title 20 O.S.1951 § 40, provides:

'The Criminal Court of Appeals shall have exclusive appellate jurisdiction, co-extensive with the limits of the State, in all criminal cases appealed from the district, superior and county courts, and such other courts of record as may be established by law.'

Section 41 of the same Title provides:

'Said court and judges thereof shall have the power to issue writs of habeas corpus; and under such regulations as may be prescribed by law, issue such writs as may be necessary to exercise its jurisdiction; and may prescribe and promulgate such rules for government of said court as it may deem necessary.'

See, in connection with the above, art. VII, § 2 of the Oklahoma Constitution.

We conclude, as stated in State ex rel. Mitchell v. Swindall, supra [33 Okl.Cr. 210, 241 P. 458], that 'we see no reason why in a proper case resort to this Writ may not be had.' ³ But at the same time, we must state that we can conceive of few situations where specific statutory provisions in this State would not afford relief. As stated by this court in Ex parte Hinley, supra [94 Okl.Cr. 267, 234 P.2d 948]:

'The right given to one convicted of crime to file a motion in arrest of judgment or a motion for new trial because of newly discovered evidence, and other statutory remedies have largely superseded the office and functions of the common law writ of coram nobis.'

Expressed in more detail is the oft quoted statements by Justice Elliott, in the basic case of Sanders v. State, 85 Ind. 318, 44 Am.Rep. 29, and approved by this court in State ex rel. Burford v. Sullivan, supra [86 Okl.Cr. 364, 193 P.2d 602], where it is said:

"'It is our opinion that the courts have the power to issue writs in the nature of the writ coram nobis, but that the writ can not be so comprehensive as at common law, for remedies are given by our statute which did not exist at common law--the motion for a new trial and the right of appeal--and these very materially abridge the office and functions of the old writ. These afford an accused ample opportunity to...