Houston v. State
| Decision Date | 05 May 1959 |
| Citation | 96 N.W.2d 343,7 Wis.2d 348 |
| Parties | Richard Wallace HOUSTON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
Richard Houston, pro se.
John W. Reynolds, Atty. Gen., William A. Platz, Asst. Atty. Gen., for respondent.
The plaintiff in error urges only two grounds for the granting of his petition for writ of coram nobis: (1) that his counsel 'conspired, conjured and wilfully betrayed all his rights before, during and after the trial' and (2) that Elizabeth Welbes, whom he assumed should have been a codefendant, testified under compulsion, coercion and intimidation for the prosecution for the state resulting in perjured testimony and his ultimate conviction.
The writ of error coram nobis, also known as the writ of coram nobis, is an ancient common-law writ seldom used in the early practice in this state but which of late has been recognized by the courts and in 1949 was expressly provided for by statute. Ernst v. State, 1923, 179 Wis. 646, 192 N.W. 65, 30 A.L.R. 681; Writ of Error Coram Nobis, Vol. II No. 3 (April 1923) Wisconsin Law Review, 191; The 1949 Revision of the Wisconsin Code of Criminal Procedure, Platz, 1950, No. 2, Wisconsin Law Review, p. 236; sec. 958.07, Stats., 1957, 42 W.S.A., p. 245.
The writ of coram nobis is a discretionary writ addressed to the trial court. Its principal aim is to afford the trial court an opportunity to correct its own record of an error of fact not appearing on the record and which alleged error would not have been committed by the court had the matter been brought to the attention of the trial court. 2 Ruling Case Law, p. 305, sec. 259. Ernst v. State, 1923, 179 Wis 646, 192 N.W. 65, 30 A.L.R. 681. Where an error or question of fact appears on the record such question under our practice may be raised by writ of error. Where there is a remedy afforded by a writ of error or by appeal the writ of coram nobis will not lie. Likewise where the writ of habeas corpus affords a proper and complete remedy the writ of coram nobis will not be granted. State v. Turpin, 1949, 255 Wis. 358, 38 N.W.2d 495. On an application for a writ of coram nobis the merits of the original controversy are not in issue and such a writ cannot be used for the purpose of obtaining a new trial on the grounds of newly discovered evidence relating to matters litigated at the trial. Ernst v. State, 1923, 179 Wis. 646, 192 N.W. 65.
The question on this appeal then is whether the trial court abused its discretion in denying the petition for the writ of coram nobis. The only support for the contention that the plaintiff in error's rights were betrayed by his counsel is the affidavit of Kathryn Mary Tagatz, who states that she paid counsel for the plaintiff in error the sum of $400 with the understanding that $100 was to be used to hire a handwriting expert. Apparently no handwriting expert was hired or at least called as a witness. The trial court in its opinion stated the record clearly showed that counsel, who was chosen by the plaintiff in error, performed a lawyerlike job throughout the entire trial, including the preliminary matters, and fully and completely protected the constitutional rights of the plaintiff in error. There are no facts stated in the plaintiff's petition to support his conclusion that his counsel 'conspired or betrayed' any of his rights or that counsel is open to any of the criticism levied against him.
It does not appear what effect the testimony of a handwriting expert would have had. The plaintiff in error was not charged with forgery. An error to constitute a ground for the granting of the writ of coram nobis must not only be unknown to the court but would have prevented the judgment of the court. There is no such showing here. Where an error would not have changed the conviction because it was harmless it was held that the alleged insanity of a state's witness was not a ground for granting the writ. In State v. Stelloh, 1951, 262 Wis. 114, 53 N.W.2d 700, certiorari denied in 344 U.S. 846, 73 S.Ct. 64, 97 L.Ed. 658; 345 U.S. 913, 73 S.Ct. 654, 97 L.Ed. 1347; 351 U.S. 987, 76 S.Ct. 1057, 100 L.Ed. 1500. The writ of coram nobis has been denied where the alleged error in fact was based entirely upon the petitioner's statement that he did not plead guilty and the court record showed a plea of guilty. State v. Wagner, 1939, 232 Wis. 138, 286 N.W. 544. Unless it clearly appears that an error of fact existed ...
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