Humphreys v. State

• Decision Date: 22 April 1924
• Docket Number: 18059.
• Citation: 129 Wash. 309,224 P. 937
• Parties: HUMPHREYS v. STATE.
• Court: Washington Supreme Court

224 P. 937

129 Wash. 309

HUMPHREYS v. STATE.

No. 18059.

Supreme Court of Washington, En Banc.

April 22, 1924

Appeal from Superior Court, Whitman County; Miller, Judge.

Petition by Fred Humphreys for a writ of coram nobis. From a judgment denying the writ, petitioner appeals. Affirmed.

See also, 118 Wash. 472, 203 P. 965.

Pemberton J., dissenting.

Pickrell & Stotler and Hanna, Miller & Hanna, all of Colfax, for appellant.

W. L La Follette, Jr., and S. R. Clegg, both of Colfax, for the State.

PARKER J.

This proceeding was commenced in the superior court for Whitman county by Fred Humphreys by filing therein his petition for a writ of coram nobis, praying that a verdict of a jury and a judgment thereon rendered in that court convicting him of grand larceny be vacated and set aside upon the ground that after the expiration of the statutory period for his moving for a new trial, he discovered evidence which, if presented upon his trial, would have prevented the finding and rendering of that verdict and judgment. The state responded to the petition both by a demurrer and answer. Thereafter affidavits were filed in behalf of Humphreys in support of the facts alleged in his petition, and controverting affidavits were filed in behalf of the state. Upon the record so made the court denied the prayer of the petition, resting such denial upon the ground that the petition did not state legal cause for relief as prayed for. No request was made for leave to amend the petition, and the affidavits in support and contravention thereof presented no additional cause for relief. In other words, all of such affidavits were but evidence in support or in contradiction of the facts alleged in the petition. From this disposition of the matter in the superior court Humphreys has appealed to this court.

The facts, as alleged in the petition, may be summarized as follows: On August 30, 1920, the prosecuting attorney filed an information in the superior court for Whitman county charging appellant Humphreys with the crime of grand larceny, in that he, 'on or about the 25th day of August, A. D. 1920, in the county of Whitman, state of Washington, then and there being, did then and there willfully, and unlawfully, and feloniously take, steal, and carry away personal property belonging to R. B. Terrell, to wit, 10 sacks of wheat of the value of $4.50 per sack and of the total value of $45.' Thereafter appellant was brought to trial in that court, resulting in the jury finding him guilty as charged. Thereafter, within the time prescribed by statute, appellant filed his motion for a new trial, which motion was supported by a showing of alleged newly discovered evidence. Thereafter this motion was by the court overruled. Thereafter judgment was rendered against appellant sentencing him to a term in the penitentiary. Thereafter appellant gave notice of appeal from that judgment to this court. Thereafter this court affirmed the judgment so rendered by the superior court. 118 Wash. 472, 203 P. 965. Following the recital of these proceedings, appellant's petition alleges that an error of fact was committed in the rendering and affirming of his conviction, 'in this, that the verdict by the jury and judgment of the court were based upon evidence introduced by the state in said cause No. 13991, to the effect or tending to show that petitioner had on or about the 25th day of August, 1920, stolen from R. B. Terrell 10 sacks of wheat of the value of $4.50 per sack, or of the total value of $45, when in truth and in fact petitioner did not on or about said 25th day of August, 1920, or at any other time or at all steal any wheat, the property of R. B. Terrell, or of any other person or at all; that petitioner did not know at the time of said trial who had stolen or taken the 10 sacks of wheat belonging to said R. B. Terrell, nor did any one connected with the defense of said action, nor at the time of his sentence was he in the possession of information tending to connect other parties with the taking thereof, but since said time petitioner has ascertained whom the parties were who took said wheat, and herewith attaches to this petition copies of affidavits of parties connected with the taking of said 10 sacks of wheat, which said affidavits are hereby made a part of this petition; that petitioner did not have anything to do with the taking or theft of said wheat, and at all times asserted his innocence and made the best defense he could do said charge, and to his knowledge was not negligent in any way in securing or attempting to secure evidence to present to the jury to establish his lack of guilt, and petitioner did not come into possession of the information contained in the attached affidavits until too late to present same to the court and jury; that there was not any evidence introduced upon the trial of cause No. 13991 touching upon the matters set forth in the affidavits hereto attached, and said cause was heard and determined upon the evidence produced before the jury and the affidavits in support of petitioner's motion for a new trial to which reference is hereby made, and the question involving the guilt of any person other than petitioner of the offense charged was not involved in or determined in said cause.' The affidavits, made part of appellant's petition, omitting signatures and jurat, read as follows:

'Clifton Wilson, Joe Humphreys, and Joe Wilson being first duly sworn, each for himself and not one for the other, says: That they took the ten sacks of wheat from the R. B. Terrell setting on the 25th day of August, 1920; that Fred Humphreys was tried and convicted for taking in the superior court at Colfax, Wash., on the 6th & 7th day of December, 1920; that Fred Humphreys had nothing to do with the taking of the wheat, was not with us, and knew nothing about it; that we loaded the wheat into an automobile and hauled it down and left it where found in the cowshed on Fred Humphreys' place, and the wheat was taken without the knowledge or consent of Fred Humphreys.'

The writ of coram nobis and all proceedings in the nature of that ancient writ, having in view the setting aside of a final judgment of a court of competent jurisdiction, are very much limited in their efficacy in jurisdictions, such as ours, having statutory provisions regulating procedure granting new trials. This is especially true where the statutes, such as ours, provide for and regulate the granting of new trials upon the ground of newly discovered evidence. Our statute, with reference to the granting of new trials in criminal cases, reads in part as follows:

'An application for a new trial must be made before judgment, and may be granted for the following causes materially affecting a substantial right of the defendant:

* * *

* * *

'3. Newly discovered evidence material for the defendant, which he could not have discovered with reasonable dilligence, and produced at the trial.' Sec. 2181, Rem. Comp. Stat.

So, if this application be nothing more than the seeking of the setting aside of the judgment of conviction rendered against appellant, upon the ground of newly discovered evidence touching the merits of the case in which that judgment was rendered, it manifestly comes too late, since it comes long after the rendering of that judgment.

In the text of Freeman on Judgments, § 94, we read with reference to this subject:

'This writ does not lie to correct any error in the judgment of the court, nor to contradict or put in issue any fact directly passed upon and affirmed by the judgment itself. If this could be, there would be no end to litigation. * * * The writ of error coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which, without any fault or negligence of the party, was not presented to the court.'

These observations by that learned author have been cited and quoted with approval by many of the courts of last resort in this country. Our problem, it seems, may be stated in these two questions: (1) Do the facts here relied upon by appellant go any farther than to contradict and seek to again put in issue the ultimate fact, to wit, appellant's...