Robertson v. Commonwealth
| Decision Date | 29 September 1939 |
| Citation | 132 S.W.2d 69,279 Ky. 762 |
| Parties | ROBERTSON v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Rockcastle County; J. S. Sandusky, Judge.
Suit in equity by Willie Robertson against the Commonwealth of Kentucky for a writ of coram nobis and writ of audita querela against the Commonwealth and James Hammond, the Warden of the Kentucky Reformatory, to show cause why he should not be given a new trial in armed robbery prosecution. From a judgment of dismissal, Willie Robertson appeals.
Affirmed.
D. E Wooldridge, of LaGrange, and Williams & Denny and Joel M Jones, all of Mt. Vernon, for appellant.
Hubert Meredith, Atty. Gen., and William F. Neill, Asst. Atty. Gen for the Commonwealth.
SIMS Commissioner.
Willie Robertson and Charlie Parker were jointly indicted in the Rockcastle Circuit Court for armed robbery. Robertson was tried separately, which trial resulted in a conviction and his punishment was fixed at twenty-one years in the penitentiary. On an appeal to this court the judgment was affirmed as is shown in Robertson v. Com., 269 Ky 317, 107 S.W.2d 292, and he is now serving his sentence. The facts are fully set out in that opinion and it is unnecessary to incorporate them here. But we call attention to the fact that the opinion shows Kenneth Mullens and Ernie Ponder were also indicted for this same crime; that Mullens was introduced as a witness for the Commonwealth and testified Robertson requested him to assist in the robbery and that after the robbery asked him to swear that they had slept together the night of the crime.
After the judgment against him was affirmed and while serving his sentence in the penitentiary, Robertson filed his petition in equity in the Rockcastle Circuit Court wherein he alleged he was not guilty of the crime for which he was convicted and for which he was incarcerated; that at the time of his trial he did not know who was guilty of the crime for which he was being tried; that while he was in the penitentiary Charlie Parker was tried during the August, 1937, term of the Rockcastle Circuit Court which resulted in Parker's conviction and in his being sentenced to twenty-one years' confinement in the penitentiary; that soon after his conviction Parker made a written confession, sworn to before a notary public on August 23, 1939, that he (Parker), Mullens and Ponder committed the crime, exonerating Robertson from any connection therewith; that Mullens on October 24, 1938, also made a written confession sworn to before a notary that Robertson was innocent of the charge and had no connection with the crime for which he was convicted. Copies of the affidavits of Parker and Mullens are filed with the petition which alleges the original affidavits are on file in the office of the Governor of Kentucky. The petition alleges that the confessions of Parker and Mullens were the first knowledge or information Robertson had of who committed the crime for which he was convicted, and that neither of these confessions was available to him at the time of his trial; that his conviction was the result of the fraudulent conduct of Parker and Mullens in withholding their confessions.
Appellant's petition alleges Charlie Parker was called as a witness for him on his trial in the circuit court and that Parker refused to testify. The opinion of this court in that case does not show this fact, but it does show that the commonwealth attorney, who was called as a witness for Robertson, refused to testify. We have obtained the record in that case and we find Parker was not called as a witness for defendant, Robertson, but was used by the commonwealth in rebuttal. Parker testified that certain statements he made to the commonwealth's attorney that he (Parker) was connected with and assisted in this robbery were not true, and he made such statements "to help Willie Robertson out, not knowing what it would lead me to". Parker was not cross examined by Robertson's counsel. We presume counsel for the appellant, Robertson, in the instant case, did not have the record in the original case before them and the fact they had remembered someone had refused to testify in that case caused them to confuse Parker with the commonwealth attorney.
In the prayer of his petition Robertson asked the court before whom he was tried to grant him the writ of coram nobis "and or" the writ of audita querela against the Commonwealth of Kentucky and James Hammond, the warden of the Kentucky Reformatory, to show cause why he should not be given a new trial. Appellees filed a general demurrer to the petition, which was sustained by the court, and plaintiff declined to plead further, his petition was dismissed and he prosecutes this appeal.
We find the writ of coram nobis and the writ of audita querela thus defined by the text writers:
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...which when rendered was just and unimpeachable. Balsley v. Commonwealth, 428 S.W.2d 614, 616 (Ky.1967) (quoting Robertson v. Commonwealth, 279 Ky. 762, 132 S.W.2d 69, 71 (1939)), overruled on other grounds, Commonwealth v. Hale, 96 S.W.3d 24 (Ky. 2003). Put differently, coram nobis attacks ......
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