Parker v. State
| Citation | 131 N.W.2d 678,178 Neb. 1 |
| Decision Date | 11 December 1964 |
| Docket Number | No. 35673,35673 |
| Court | Supreme Court of Nebraska |
| Parties | Darrel F. PARKER, Appellant, v. STATE of Nebraska, Appellee. |
Syllabus by the Court
1. The common law writ of error coram nobis exists in this state under section 49-101, R.R.S.1943.
2. The purpose of the writ of error coram nobis is to bring before the court rendering the judgment matters of fact which, if known at the time the judgment was rendered, would have prevented its rendition. It enables the court to recall some adjudication, made while some fact existed which, if before the court, would have prevented rendition of the judgment and which, through no fault of the party, was not presented.
3. The burden of proof in a proceeding to obtain a writ of error coram nobis is upon the plaintiff. The alleged error of fact in a criminal proceeding must be such as would have prevented a conviction. It is not enough to show that it might have caused a different result.
4. All presumptions exist in favor of the regularity and correctness of the judgments of courts of general jurisdiction. The burden is on the plaintiff in a proceeding for a writ of error coram nobis to produce substantial and credible evidence sufficient to overcome the presumption that the judgment of conviction was correct.
5. Ordinarily, the writ of error coram nobis does not lie to test the credibility of witnesses in a criminal trial and cannot be invoked upon the ground that an important witness testified falsely about a material issue in the case.
6. The writ of error coram nobis is not a substitute for a writ of error brought to correct errors of law apparent on the record. It does not permit a defendant to retry his case again and again.
Schrempp, Lathrop & Rosenthal and Richard J. Bruckner, Omaha, for appellant.
Clarence A. H. Meyer, Atty. Gen., and Homer Hamilton, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
The plaintiff, Darrel F. Parker, was convicted of first degree murder in the district court for Lancaster County, Nebraska, and sentenced to life imprisonment. The judgment was affirmed by this court in Parker v. State, 164 Neb. 614, 83 N.W.2d 347.
The plaintiff brought this proceeding to obtain a writ of error coram nobis and an order granting a new trial. After a hearing upon the merits, the trial court denied the writ and dismissed the action. The plaintiff's motion for new trial was overruled and he has appealed.
The common law writ of error coram nobis exists in this state under section 49-101, R.R.S.1943. Carlsen v. State, 129 Neb. 84, 261 N.W. 339. The purpose of the writ of error coram nobis is to bring before the court rendering the judgment matters of fact which, if known at the time the judgment was rendered, would have prevented its rendition. It enables the court to recall some adjudication, made while some fact existed which, if before the court, would have prevented rendition of the judgment and which, through no fault of the party, was not presented. Swanson v. State, 148 Neb. 155, 26 N.W.2d 595.
The burden of proof in a proceeding to obtain a writ of error coram nobis is upon the plaintiff. Hawk v. State, 151 Neb. 717, 39 N.W.2d 561. The alleged error of fact must be such as would have prevented a conviction. It is not enough to show that it might have caused a different result. See, 24 C.J.S. Criminal Law § 1606(7), p. 691; Hysler v. Florida, 315 U.S. 411, 62 S.Ct. 688, 86 L.Ed. 932.
The plaintiff was charged with and convicted of the murder of his wife, Nancy Parker, on December 14, 1955. The principal allegations contained in the petition filed in this proceeding and most of the evidence introduced or offered by the plaintiff relate to the plaintiff's contention that Nancy Parker was killed by someone other than the plaintiff. The following is a summary of the principal evidence offered by the plaintiff in support of this contention.
The plaintiff offered the testimony of one of his attorneys that in 1956, Wesley Peery, then a prisoner in the Nebraska State Penitentiary, said that if the attorney or plaintiff's parents would guarantee Peery's bond, Peery would tell where Nancy Parker's wristwatch and a suitcase taken from the Parker home on the day of the mumrder were; that the plaintiff did not kill Nancy Parker; that Peery drove by the Parker home on the morning of the murder; and that when asked if he had stopped in the Parker home that morning Peery answered,
The plaintiff offered his own testimony that in June 1956, Peery told the plaintiff that if his parents would guarantee Peery's bond, Peery would tell the plaintiff where Nancy Parker's wristwatch and the suitcase were, and the name of the person who killed Nancy Parker.
The plaintiff offered the testimony of Kenneth Hamilton, a former prisoner in the Nebraska State Penitentiary, that in 1956 and 1957, Peery told Hamilton on several occasions that he killed Nancy Parker and described in detail how the crime was committed.
The plaintiff offered the testimony of Charles Sedlacek, a former prisoner in the Nebraske State Penitentiary, that in 1956 and 1957, on a number of occasions Peery discussed the Nancy Parker murder case with him; that Peery stated that he became acquainted with Nancy Parker, had been in her house, and had lunch with her; that Peery said that on December 14, 1955, he parked his black 1949 Ford near the Parker home, waited for the plaintiff to leave, and then entered the Parker home and killed Nancy Parker; and that Peery said that he took her wristwatch, a suitcase, some sofa pillows, and other property with him when he left the house.
Sedlacek testified that he was released from the penitentiary in June 1957; that in August 1957, he helped furnish a bond for the release of Peery from the penitentiary; that several days after Peery had been released from the penitentiary, he and Ray Dillard came to Sedlacek's house in Crete, Nebraska; and that Peery left a wristwatch, two suitcases containing men's shirts and other clothing, three sofa pillows, and some other items at Sedlacek's place. The plaintiff offered the testimony of Sedlacek that Peery offered to sell the 'outfit' for $50 and that Peery said that it came out of the Parker house. Sedlacek identified exhibit 28 as the suitcase and exhibits 30, 30-A, and 30-B as the sofa pillows brought to his house by Peery.
The plaintiff offered in evidence a document identified as exhibit 23, which purports to be a typewritten letter signed by Peery dated August 8, 1957. Exhibit 23, with profanity deleted is as follows:
'August 8, 1957.
'Dear Charlie.
'I have seen and heard what a hard time the Lincoln cops have given to you since you have left here, and ido not have no use for the chief of Lincoln police nor for any one under him, and the same goes for the sheriffs andall of his depities, and the same goes for Elmer Schiell and Dale Farbrock;.
And if you can help me get out on avail bond, I will help you any way possible, you just name who you wish bumped off, as I have the guts to do the job 100%; just like took care of old * * * Nancy Parker, I can assure you I doneit ok;
'And if Ineed any help, I can whistle, and my Buddy Ronald W. Brewer will be johnny on the job;
'I sure made amonkey out of them when they gave to me the so called lie detecter test, all a person has to do is to know how to react and one has it made, Ha ha heho, Savvy? you do your part of the bargion, and I will do just what I have said I will do.
'Hope to see you real soon, so Please dont let me Down.
'Please do destroy this letter, as I am having it sent out by a Good Pal of mine,.
'Best of good luck to you Old Buddie Charlie, Hope to see you in the very near futher. Don't let me down PLEASE.
'I remain your old faithfull Buddy.
Wesley H. PEERY.
/s/ Wesley Peery'
The evidence does not show how or when the plaintiff came into possession of exhibit 23. The record indicates that much of the evidence offered by the plaintiff in this proceeding was obtained by Ralph Peterson, a private investigator from Red Oak, Iowa. Peterson did not testify in the proceeding.
Ed W. Johnson, a retired furnace salesman from Red Oak, Iowa, and an uncle of Peterson, testified that he was with Peterson on March 30, 1961, when he saw exhibit 23 on a dining...
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