Skipper v. State

• Decision Date: 25 March 1937
• Citation: 127 Fla. 553,173 So. 692
• Parties: SKIPPER v. STATE.
• Court: Florida Supreme Court

173 So. 692

127 Fla. 553

SKIPPER v. STATE.

Florida Supreme Court

March 25, 1937

Rehearing Denied April 22, 1937.

Writ of Error to Circuit Court, Highlands County.

C. A Skipper was convicted of embezzlement, the conviction was affirmed, and he files a petition for leave to apply to the circuit court for a writ of error coram nobis.

Petition denied.

BROWN J., dissenting.

COUNSEL W. K. Whitfield and Ernest Amos, both of Tallahassee, for petitioner.

Cary D Landis, Atty. Gen., Roy Campbell, Asst. Atty. Gen., and J. C Adkins, State's Atty., of Gainesville, for the State.

OPINION

BUFORD, Justice.

This is now before us on application for leave to apply to the circuit court for a writ of error coram nobis.

The petition alleges that one C. E. Lien testified falsely on the trial of Skipper and also before the grand jury which indicted Skipper, and that such false testimony was at the time known by the State Attorney to be false.

An affidavit purporting to have been made by C. E. Lien in Denver, Colo., on September 30, 1935, and another purporting to have been made by the same person at the same place, are attached to and taken as a part of the petition. The affidavits are contradictory and do not sufficiently support the allegations of the petition to make a prima facie case warranting the issuance of a writ of error coram nobis. The petition when considered alone, or in connection with the thereto attached affidavits, presents no traversible facts upon which issues could be made up warranting a trial by jury and the entry of a judgment holding the former trial of the petitioner invalid and illegal. The affidavits referred to only show that either the testimony given by Lien on the trial was corruptly false and untrue, or else the statements in the affidavit are untrue. This presents a question which may possibly address itself to the State Board of Pardons, but not one which courts will attempt to judicially determine.

There must be an end to litigation and trials. It may be readily seen that if after conviction in the circuit court, writ of error to the judgment, and affirmance by the Supreme Court, the accused may then procure another trial of a new issue which presents the question of whether or not a material witness committed perjury being induced to do so by whatever means or influence, there would be no end to trials so long as the accused could pay able counsel alluring fees and find ways to get witnesses who have gone beyond the jurisdiction of the courts of the State to make affidavits repudiating former testimony. It is for this very reason that the rule is well established that writ of error coram nobis may not be invoked upon the ground that a witness in the trial of the cause testified falsely about a material fact, nor may newly discovered evidence going to the merits of the issues tried be used as a basis for the writ. Jennings v. Pope, 101 Fla. 1476, 136 So. 471; Lamb v. State, 91 Fla. 396, 107 So. 535; Lamb v. Harrison, 91 Fla. 927, 108 So. 671, and cases there cited.

So the petition is denied.

So ordered.

ELLIS, C.J., and WHITFIELD and DAVIS, JJ., concur.

DISSENTING

BROWN Justice (dissenting).

This case is again before us on application for leave to apply to the circuit court for a writ of error coram nobis, the purpose of which writ would be to set aside the judgment of conviction upon which the petitioner was sentenced to the penitentiary for embezzlement of bank funds over three and a half years ago.

The petitioner was indicted by the grand jury of Highlands county in May, 1933. The indictment alleged that the defendant had embezzled $15,000 belonging to the Highlands County Bank. He was convicted in July, 1933 and the judgment of conviction was affirmed by this court March 21, 1934. See 114 Fla. 312, 153 So. 853. Appeal therefrom to the United States Supreme Court was dismissed 'for the want of a properly presented Federal question.' 293 U.S. 517, 55 S.Ct. 76, 79 L.Ed. 631. This, of course, occasioned considerable delay. Thereafter, Skipper petitioned the circuit court of Highlands county for a writ of habeas corpus, which was denied. this order was brought before us on writ of error and the judgment of the circuit court denying the writ of habeas corpus was affirmed. Skipper v. Schumacher, 118 Fla. 867, 160 So. 357. Rehearing was applied for and denied. Thereafter, petition for writ of certiorari was filed in the United States Supreme Court for the purpose of reviewing the judgment of this court in the habeas corpus proceeding, and certiorari was denied by the Federal Supreme Court on October 14, 1935. 296 U.S. 578, 56 S.Ct. 88, 80 L.Ed. 408. Thereafter, the petitioner filed a petition in this court for permission to apply to the circuit court of Highlands county for a writ of error coram nobis, which petition was denied without opinion. Then a petition for writ of habeas corpus was filed in this court, attacking the original judgment of conviction on the ground that such judgment had been obtained upon the testimony of one C. E. Lien who had been intimidated and induced to testify falsely by several unnamed members of the grand jury, and for other reasons, which facts had not come out at the trial and did not come to the knowledge of the petitioner until long after the trial. This court held that these allegations did not constitute good ground for a collateral attack by way of habeas corpus upon a judgment of a court of general jurisdiction, valid on its face, so the writ was quashed and the petitioner remanded by this court to the custody of the sheriff on May 28, 1936. Petition for rehearing was filed and was denied on June 26, 1936. See Skipper v. Schumacher, 124 Fla. 384, 169 So. 58, 64. Again the petitioner sought to have the judgment of this court reviewed by the Supreme Court of the United States, and when that court acted upon the matter, Skipper's petition for certiorari was denied. 57 S.Ct. 39, 81 L.Ed.376. Thereupon the petitioner filed the present application to this court for leave to apply to the circuit court for the common-law writ of error coram nobis, the purpose of which writ would be to attack the validity of the original judgment of conviction in the court wherein that judgment was rendered, upon the grounds alleged in the petition for leave to apply.

In said habeas corpus proceeding, which was before us last year, the defendant attacked the validity of the statute under which he was convicted (Comp.Gen.Laws 1927, § 7247), which question this court decided adversely to his contention, but the main ground of his petition at that time was that the verdict of the jury and the judgment of conviction could not have been obtained but for the testimony of C. E. Lien, who had been president of the bank, and that shortly before the petition was filed, petitioner had ascertained that Lien had been induced to testify falsely against him by reason of the pressure brought to bear upon him by several unnamed members of the grand jury who threatened to indict and prosecute Lien unless he promised to testify according to their wishes; that on one occasion he (Lien) was visited after midnight, and was told that a meeting had been called in one of the business rooms in the City of Sebring to discuss grand jury deliberations and instruct them what to do and that he would be expected to testify in such a manner as to convict petitioner, otherwise he (Lien) would be prosecuted himself that Lien was laboring at the time under intense physical pain and great excitement and distress of mind, due to the condition of the bank and fear lest he should be involved in connection therewith; and that his testimony was thus obtained by intimidation and fraud. Attached to the petition was a long letter from C. E. Lien, addressed to petitioner's then attorney, written from Denver, Colo., September 30, 1935, in which he stated in substance that he had been recently visited by Mr. Skipper and he realized that he had done Skipper a great injustice and wishes to do all that he could to make amends therefor, and he went into the matter at great length, but without making any reference whatever to the State Attorney, and it was evidently upon the basis of this letter that the allegations in the petition were founded. He stated that the notes which Skipper had collected, and for the proceeds of which he had been charged with embezzlement, were not the notes of the bank, but that there had been a substitution of other collateral with the approval of the loan committee, and later with the approval of the directors recorded in the minutes, and that the notes which Skipper had later collected were thereby released and from that date on were not...