Partlow v. State, 23915.

• Decision Date: 10 March 1922
• Docket Number: No. 23915.,23915.
• Citation: 191 Ind. 657,134 N.E. 483
• Parties: PARTLOW v. STATE.
• Court: Indiana Supreme Court

191 Ind. 657

134 N.E. 483

PARTLOW

v.STATE.

No. 23915.

Supreme Court of Indiana.

March 10, 1922.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

John L. Partlow was convicted of receiving stolen goods, and he appealed from the judgment and an order overruling a motion for new trial, and the judgment was affirmed.While the case was pending on rehearing, the defendant petitioned the trial court for writ coram nobis, and, his petition being denied, he appeals, and asks to consolidate the two appeals.Petition for consolidation denied, and appeal dismissed.Floyd G. Christian, of Noblesville, Ed. V. Fitzpatrick, and W. D. Fitzpatrick, both of Indianapolis, and Ira W. Christian, of Noblesville, for appellant.

U. S. Lesh, Atty. Gen., and A. G. Gavins, of Indianapolis, for the State.

TRAVIS, J.

The foundation for this appeal is a petition for the ancient writ coram nobis, which was denied by the trial court.

On the 28th day of November, 1919, the court, following the verdict of guilty by a jury, adjudged that appellant, for the offense committed by him, be fined in the penal sum of $1,000 and imprisoned in the Indiana State Prison for a term of not less than one or more than 14 years.From this judgment appellant appealed to this court(Partlow v. State of Indiana [No. 23731, Ind. Sup.] 128 N. E. 436), which appeal was based upon the overruling of his motion for a new trial, and which motion was based upon errors of law in the giving of each instruction by the trial court, and that the verdict of the jury was contrary to law, and not sustained by sufficient evidence.

Although appellant was given 60 days in which to file his bills of exception, only one was filed-that which contained the instructions.No bill of exceptions containing the evidence appeared in the record.The case on appeal had been decided by this court(Partlow v. State, supra), and was pending on a petition for rehearing at the time appellant filed his petition in the case at bar, in the trial court, which rendered judgment against him.From the decision of the trial court which overruled his petition for writ of coram nobis, appellant appealed to this court, and, after perfecting his appeal, petitioned the court to consolidate this appeal with the appeal in the cause Partlow v. State, supra, then pending upon motion for rehearing, and thereupon, before this motion had been acted upon, appellee filed its motion to dismiss the appeal.

[1] The writ coram nobis is based upon error of fact, as distinguished from the writ of error which is based upon error of law.The application for either writ, as a matter of practice, always had been, and must now be a part of the proceeding of the case to which it refers, and in regard to the writ coram nobis, must be filed in the court that rendered the judgment.

[2] The question before the court under the motion to dismiss, is, Did appellant's application for the writ coram nobis have any place to lodge in the court below? which suggests the following question: Appellant had taken his appeal to this court from the judgment upon the verdict of guilty, and, this court having rendered its opinion upon such appeal, and the appellant having filed his motion for a rehearing(which motion is still...