Huffman v. Alexander

Decision Date11 February 1953
Citation197 Or. 283,253 P.2d 289
PartiesHUFFMAN v. ALEXANDER, Warden.
CourtOregon Supreme Court

George Neuner, Atty. Gen. for Oregon, and Howard R. Lonergan, Asst. Atty. Gen., for the petition.

Hewitt, Estep & Sorensen, of Salem, contra.

Before BRAND *, Chief Justice, and ROSSMAN, LUSK, LATOURETTE **, WARNER and TOOZE, Justices.

BRAND, Justice.

We are confronted by a deplorable situation. On 21 September 1950 the petitioner Huffman was sentenced to serve a maximum term of three years. The petition for habeas corpus was not filed until 22 August 1951. The case was put at issue in the circuit court on 17 September 1951. It was not tried until 8 February 1952. The appeal was put at issue in this court on 7 July 1952, five months later. On 13 August this court advanced the case for hearing and heard it on 2 September 1952. For the first time, we are now informed by counsel that the plaintiff was discharged from custody 20 days after the case was argued here, and considerably before this court had completed its study of the varied and profoundly important issues presented. Working thus in the dark, we have expended time and effort in a case which became moot 20 days after we had heard the argument.

The office of habeas corpus is to give to a person, restrained of his liberty, an immediate hearing. O.C.L.A. § 11-413; 39 C.J.S., Habeas Corpus, § 4, and cases cited. The employment of the Great Writ in this case has resulted in no relief to the prisoner and has uselessly clogged the docket of this court. An opinion upon the merits had been written and published, 251 P.2d 87, and a petition for rehearing filed and studied by this court before we were notified that the case had become moot.

The petition for rehearing is presented by the Attorney General. He 'applauds' the views expressed by the court upon the merits, and seeks a rehearing only to a question of procedure. He agrees that habeas corpus is the proper remedy, if no other remedy exists, but now for the first time he suggests that a motion to vacate the judgment in the nature of coram nobis was the only proper procedure in this case. As an alternative, he suggests that there was a remedy under the statutes, authorizing new trials in criminal cases. If the matter were now of any importance to the petitioner Huffman, we would hold that the procedural challenge to the employment of habeas corpus comes too late. We find no evidence that it was presented in the trial court, and it was not urged in this court until after the decision of the case. This case being now moot, the question for our consideration is whether we should pass upon the contentions of the Attorney General because of public interest, not in this case, but in the questions of procedural law which are presented. The discretionary right of this court to pass upon questions of public importance which have become moot is recognized by the authorities. In re Suspension of License by Oregon Liquor Control Commission, 180 Or. 495, 177 P.2d 406; 3 Am.Jur., Appeal and Error, § 733, p. 310. There may be further reason for considering the petition because of the fact, as certified by the Attorney General, that the petitioner Huffman, for reasons unknown to us, and in December of 1952, filed a motion in the nature of coram nobis in the Lincoln County circuit court, in which court he was convicted. Under all of the circumstances, we have decided to put at rest the issues presented by the Attorney General in order that the procedural questions may be removed from uncertainty. The petition presents matters which merit consideration and which may also suggest the desirability of remedial legislation.

Only once has the writ of error coram nobis been directly before this court. In State v. Rathie, 101 Or. 368, 200 P. 790, one who had been convicted of murder in the first degree attempted to sue out a writ of error coram nobis in the circuit court of Umatilla County, in which court the defendant had been convicted. After hearing, the trial court dismissed the proceeding and an appeal was taken to this court, where the judgment of dismissal was affirmed. In a brief opinion the court said:

'By section 1603, Or.L. [now O.C.L.A., § 26-1301] all writs of error and of certiorari are abolished in criminal cases.'

The statute upon which the court expressly relied reads as follows:

'Writ of errors and of certiorari in criminal actions are abolished, and hereafter the only mode of reviewing a judgment or order in a criminal action is that prescribed by this chapter.' O.C.L.A., § 26-1301. (Italics ours.)

The next section of the statute reads as follows:

'The party aggrieved, whether the state or the defendant, may appeal from a judgment in a criminal action in the cases prescribed in this chapter and not otherwise.' O.C.L.A. § 26-1302.

Speaking of O.C.L.A., § 26-1301, the court said:

'This section is plainly fatal to appellants' contention here, and the order of the circuit court is therefore affirmed.'

The defendant argues that State v. Rathie does not deny the existence of a remedy in the nature of coram nobis in this state. He asserts that, although the application was denominated a petition for writ of error coram nobis, it was actually a petition for a retrial for newly discovered evidence. The record shows, however, that the petition was filed more than eight months after judgment of conviction and the right to file a motion for a new trial had long since expired. The proceeding was a petition for a writ of error coram nobis or it was nothing, and there is nothing to indicate that the decision of the court would have been any different if, instead of denominating the petition as one for writ of error coram nobis, it had been denominated a motion in the nature of a writ of error coram nobis. The decision of this court in State v. Rathie was not based upon any insufficiency of the facts pleaded. On the contrary, the decision is a clear construction of statute, which declares that hereafter the only mode of reviewing a judgment or order in a criminal action is that prescribed by chapter 13 of Title 26, O.C.L.A., §§ 26-1301 to 26-1332 inclusive. The chapter in question constitutes a code complete within itself, and the provisions of the civil code in reference to appeals do not apply to criminal actions. State v. Berger, 51 Or. 166, 94 P. 181; State v. Stone, 178 Or. 268, 269, 166 P.2d 980, and cases there cited. The point of the case is that, by statute, the field has been preempted by a code which establishes exclusive procedure for the review of judgments and criminal cases.

From the case of Boyd v. Smyth, 200 Iowa 687, 205 N.W. 522, 524, 43 A.L.R. 1381, we quote the following:

'In a later Ohio case, State v. Hayslip, 90 Ohio St. 199, 107 N.E. 335, the court said:

"We find that in Ohio the common-law writs and pleas are designated and defined by statute just as crimes are designated and defined by statute. The writs of coram nobis and coram vobis, which are invoked in behalf of the defendants in error, are no part of the criminal jurisprudence of the state of Ohio.'

'Following this line of logic, it is to be noted by an inspection of our Code that it is a complete Criminal Code in itself, making provision for various pleas; also for motions for new trial, in arrest of judgment, and giving the defendant the right of appeal. Under our practice, when a criminal case is appealed, the duty of the Supreme Court is to review the errors, if any, in the record. In effect, under the Iowa practice the appeal in a criminal case has the same force and effect as does a writ of error in the courts where the same is used. It follows that, the Legislature having provided a complete Criminal Code, and not having provided for any writ of error coram nobis, such writ is not available under the practice in this state.

'In Coppock v. Reed, 189 Iowa 581, 178 N.W. 382, 10 A.L.R. 1407, an action in equity was brought to expunge and correct a record in a criminal case that had been tried several years before, in which Coppock was the defendant. In the discussion of that case this court said:

"Certainly, this may not be done through the writ of error coram nobis; for that does not lie, even if available in this state, to correct an issue of fact which has been adjudicated, nor for an alleged false testimony at the trial; * * * nor for newly discovered evidence'--citing authority.

'However, we are not disposed to dig into the musty archives of the past to resurrect and revivify ancient and worn out writs that have long since been discarded and forgotten.'

The principle thus announced in the cases cited is as applicable to a motion in the nature of coram nobis as to the ancient writ itself. This was made clear by the Supreme Court of Iowa in State v. Harper, 220 Iowa 515, 258 N.W. 886, 891. In that case an appeal was taken from the refusal of the court to entertain a motion for a new trial after the expiration of the term of court at which sentence had been pronounced. The motion was designated a "motion in arrest of judgment and for new trial and for writ of error coram nobis or other review." The court said:

'In so far as the motion may be treated as an application for writ of error coram nobis or other review, it could not be entertained because this court has held that our code of criminal procedure is complete in itself and that common-law proceedings not embraced in the code are not available, and has especially held that the writ of error coram nobis has been abolished. * * *'

In Michigan a similar rule was announced in Dewey v. Otsego Circuit Judge, 250 Mich. 377, 230 N.W. 180. The question related to the duty of a court to grant a writ of error coram vobis. The court cited Boyd v. Smyth, supra, and said:

'The common-law writ of error coram vobis has never obtained in this state, having been rendered obsolete by statutory methods of...

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