Ridgeway v. State, 5129

• Decision Date: 03 May 1965
• Docket Number: No. 5129,5129
• Parties: Gene RIDGEWAY, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 617

389 S.W.2d 617

239 Ark. 377

Gene RIDGEWAY, Appellant, v. STATE of Arkansas, Appellee.

No. 5129.

Supreme Court of Arkansas.

May 3, 1965.

Rehearing Denied May 24, 1965.

Ward & Mooney, Jonesboro, for appellant.

Bruce Bennett, Atty. Gen., by Beryl F. Anthony, Jr., Asst. Atty., Gen., Little Rock, for appellee.

McFADDIN, Justice.

The present case is a sequel to Ridgeway v. Catlett, 238 Ark. 323, 379 S.W.2d 277. That case was decided on June 1, 1964; and in it we said that since Ridgeway had been convicted of the crime of embezzling public funds, no executive pardon could restore to him eligibility to hold public office (Art. 5, § 9 of the Arkansas Constitution). As a direct result of that holding, Ridgeway filed, on July 16, 1964, in the Circuit Court of Jackson County, Arkansas, his pleading entitled, 'Petition for Writ of Error Coram Nobis,' in which he sought to expunge from the records of that Court his conviction for said embezzlement. The conviction was based on a plea of guilty which Ridgeway made in open Court on September 5, 1955.

The regular Judge of the Jackson Circuit Court is Hon. Andrew W. Ponder. He exchanged circuits with Hon. P. S. Cunningham, Chancellor of the 8th Chancery District; and Judge Cunningham presided over the hearing on this motion for writ of error coram nobis. Testimony was heard in open Court on August 21, 1964, the witnesses being Mr. Ridgeway, Hon. Judson Hout, an attorney of Newport, and Hon. Andrew Ponder, the Judge who accepted Ridgeway's plea of guilty and sentenced him to the penitentiary in 1955. At the conclusion of the hearing Judge Cunningham denied Ridgeway's petition for writ of error coram nobis, and from such judgment Ridgeway prosecutes the present proceeding to this Court, which is really a petition for certiorari. ¹

While the motion for writ of error coram nobis contained a number of allegations, all were waived by Ridgeway's present counsel when, at the opening of the trial on August 21, 1964 (from which trial comes the present appeal) Ridgeway's present counsel made the following statement:

'We are relying on the allegations in paragraphs 2 and 6 where we allege that he was unable financially to obtain legal counsel of his own volition; and that he never at any time was afforded an opportunity understandingly and intelligently to waive Court appointed counsel. Legally, that is the whole substance of our lawsuit upon which we will make proof.' ²

The evidence offered in the coram nobis hearing disclosed that: as early as 1947 Ridgeway was married and owned an equity in a home in Newport, Jackson County, Arkansas; he was in the furniture business in Newport for more than five months; he was also an honorary deputy sheriff; then he was in the taxicab business in Newport, having five taxicabs in his business; later he became the delinquent tax collector of Jackson County; and while in that position an audit showed him to be several thousand dollars short in his accounts.

On May 21, 1955 an information was filed by the Prosecuting Attorney in the Jackson Circuit Court, charging: that Ridgeway, during the period he was delinquent tax collector, did unlawfully and feloniously use and appropriate funds belonging to the County of Jackson and to the various school districts therein for his own uses and purposes. On the same day of the filing of the information, the Circuit Court on the motion of the Prosecuting Attorney removed Ridgeway from office as said Tax Collector, pursuant to Ark.Stat.Ann. § 41-3920 et seq. (1947). Ridgeway was arrested on May 21, 1955, and remained on bond until September 5, 1955, when he entered his plea of guilty and was sentenced to five years in the penitentiary.

After the plea of guilty and the sentence, Ridgeway's mother went to Judge Andrew Ponder and told him that she would never believe that her son could commit such a crime if he were in his right mind. So, in order to satisfy the mother, Judge Ponder specified in Ridgeway's commitment to the penitentiary that he should be sent via the State Hospital for thirty days examination. Judge Ponder testified in the hearing in August 1964 that he never had any doubt of Ridgeway's sanity and he merely sent him to the hospital for examination and report in order to satisfy Ridgeway's mother, a very fine Christian woman. The hospital report was sent back to Judge Ponder and introduced in evidence in this case, and it showed Ridgeway to be perfectly sane. After thirty days in the State Hospital Ridgeway went on to the penitentiary and served enough of his sentence to be eligible for parole, and was later pardoned, as previously recited.

At the trial before Judge Cunningham in 1964, there was no claim that Ridgeway had ever been insane, so no issue of insanity is in this case. Among the points on which Ridgeway relies there are: (1) that he was not represented by counsel when he entered his plea of guilty in 1955; and (2) that he was not able to employ counsel and did not understand that court appointed counsel would be furnished him free of charge. Of course, these claims of Ridgeway appear to us now as an afterthought. If this Court had held in Ridgeway v. Catlett, supra, that the pardon which Ridgeway received in fact restored him to eligibility to public office, then we feel confident that no writ of error coram nobis would ever have been considered or filed; and this leads us to a consideration of the real purpose and extent of a petition for writ of error coram nobis. In Howard v. State, 58 Ark. 229, 24 S.W. 8, we said of the writ of error coram nobis:

'The office of the writ is to correct an error of fact in respect to a matter affecting the validity and regularity of the proceedings in the same court in which the judgment was rendered, and where the record is, when the error assigned is not for any fault of the court; those errors which precede the judgment,--as error in the process, or through default of the clerk; where an infant appears by attorney, and not by guardian; where the defendant was insane at the time of the trial, or died before judgment. And this writ has been sustained where the defendant was induced to plead guilty to a charge of felony through fear and by reason of the threats of a mob.

'But it will not lie to contradict or put in issue any fact that has been already adjudicated in the action. An issue of fact wrongly decided is not error in that technical sense to which the writ refers. If the error lie in the judgment itself, it must be corrected by appeal or writ of error to a superior court.'

In Mitchell v. State, 234 Ark. 762, 354 S.W.2d 557, we discussed in some length the matter of a writ of error coram nobis and cited some of our earlier cases. ³ The writ is to correct mistakes of fact, not mistakes of law. If the Trial Court made any mistake in having Ridgeway sent to the State Hospital enroute to the penitentiary then certainly that was a mistake of law and not susceptible to being considered on writ of error coram nobis. But the sending of Ridgeway to the State Hospital and the examination of Ridgeway by the State Hospital officials and the report to the Circuit Court certainly shows that any possible claim of Ridgeway's insanity was before the Circuit Court and cannot now be considered on petition for writ of error coram nobis. See Mitchell v. State, supra.

Ridgeway's first point is his claim that he was allowed to enter a plea of guilty without having a lawyer represent him; and in making this plea he seeks to bring himself under the holdings of such cases as Dement v. State, 236 Ark. 851, 370 S.W.2d 191; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70; and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733. But the evidence in this coram nobis hearing clearly and without contradiction shows that Ridgeway stated in open Court that he did not desire an attorney to represent him when he was sentenced in 1955. Ridgeway testified on direct examination in the coram nobis hearing:

'Q. Did the Court ask you if you had an attorney?

'A. Yes.

'Q. All right, if you remember, what did you tell him?

'A. I said, 'No,' and he said, 'Well, the Court will appoint you an attorney.' And I said I didn't want an attorney, that I would act as my own attorney and throw myself on the mercy of the Court.'

Then on cross examination Ridgeway testified:

'Q. So to recap...