Jordan v. State, 29097

• Decision Date: 20 September 1954
• Docket Number: No. 29097,29097
• Citation: 233 Ind. 626,121 N.E.2d 643
• Parties: Porter JORDAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 643

121 N.E.2d 643

233 Ind. 626

Porter JORDAN, Appellant, v. STATE of Indiana, Appellee.

No. 29097.

Supreme Court of Indiana.

Sept. 20, 1954.

T. Ernest Maholm, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Robert L. Sheaffer, Deputy, Owen S. Boling, Deputy Attys. Gen., for appellee.

BOBBITT, Judge.

This is an appeal from an order of the Criminal Court of Marion County, Division No. 2, denying appellant's verified application for writ of error coram nobis. The errors assigned are:

1. That the decision and order of the lower court, is contrary to law.

2. For the abuse of discretion in overruling appellant's Motion to re-open the hearing in the coram nobis action in the above entitled cause, for the purpose of offering evidence in support of the perjury committed by three witnesses who had been specially ordered by the court, to appear, to rebut testimony accusing each of the three witnesses ordered before the court, of having lied after taking an oath, in answering material questions propounded by the court.

3. That the decision and order of the lower court, is not sustained by sufficient evidence.

The application for the writ alleges (1) That appellant was denied his constitutional rights at the trial of his case because the jury procured from the bailiff a piece of string about twenty feet long for the alleged purpose of making certain measurements from which the jury presumably made certain deductions as to the guilt or innocence of the defendant-appellant; and (2) That petitioner-appellant had discovered new evidence not obtainable at the time of trial consisting of a repudiation by a material witness on behalf of the state of her testimony given at the trial.

First: Appellant is attempting, under the allegations in paragraph one of his petition, to bring before this court the identical question contained in specification No. 1 of his motion for a new trial, and in assigned error No. 1 in his appeal from the original trial of the case. See Jordan v. State, 1953, 232 Ind. 265, 110 N.E.2d 751. In that case there was no evidence in the record to show that a piece of string was actually delivered to the jury and used by them in any way in arriving at a verdict. We held that no question pertaining to the alleged use of a piece of string was presented, but indicated that evidence supporting this allegation, if available, could have been brought into the record by a special bill of exceptions. It, therefore, is a question which might have been properly presented and determined on appeal. A proper remedy was, therefore, afforded appellant by his appeal and a writ of error coram nobis may not now be employed as a substitute in order to bring the question before this court. Dowling v. State, Ind.Sup.1954, 118 N.E.2d 801, 830; Sanders v. State, 1882, 85 Ind. 318.

Second: The reopening...