South v. State

• Decision Date: 17 January 1945
• Docket Number: 30615.
• Citation: 33 S.E.2d 23,72 Ga.App. 79
• Parties: SOUTH v. STATE.
• Court: Georgia Court of Appeals

33 S.E.2d 23

72 Ga.App. 79

SOUTH v. STATE.

No. 30615.

Court of Appeals of Georgia, Division No. 1.

January 17, 1945

Rehearing Denied Feb. 8, 1945.

Syllabus by the Court.

1. A writ of error coram nobis (for which the proceeding by motion is the modern substitute) will lie when it is necessary for the accused to bring some new fact before the court which can not be presented in any of the methods provided by statute, but it will not lie in cases covered by statutory provisions.

2. 'The writ [of error coram nobis] would lie at common law when the court had proceeded in a case as though a fact which was material to its right to proceed existed, when it did not exist, and when the absence of the fact assumed to exist entirely defeated the power of the court to attain a valid result in its proceeding.' To illustrate: In the case of the death of either party pending the suit before judgment therein, which was unknown to the court and where sufficient time had not elapsed for the appointment of an administrator in infancy, or insanity at the time of the trial, where the party was not properly represented by a guardian.

3. 'It may be taken as a proposition settled entirely beyond controversy in the law of this country and England that the writ of error coram nobis does not go to errors arising on facts submitted to a jury, referee, or to the court sitting as a jury to try the issues of fact.'

4. 'The court at a subsequent term can correct such matters as are reviewable in writs of error coram nobis or coram vobis, for which the proceeding by motion is the modern substitute.'

5. Where the defendant suffered improper evidence to be admitted without objection at the time, he waived the objection.

6. The judge did not err in sustaining the demurrer to the motion which the defendant denominated a writ of error coram nobis, for all of the facts stated as to why he had not urged the objection to the written evidence in the trial of the case and which he now urges as a ground for relief in his motion, were apparent on the face of the written evidence that was introduced without objection and which, in the exercise of due care, should have been known to the defendant at the time of the trial.

7. The facts alleged in the motion here, whether the motion be called a writ of error coram nobis or by any other name, were not brought to the attention of the court, either because the defendant did not wish to do so or because he was negligent in not discovering the defects, and he is not entitled to the relief sought.

James R. Venable, Jackson L. Barwick, Frank T Grizzard, and Frank A. Bowers, all of Atlanta, and Claude C. Pittman, of Cartersville, for plaintiff in error.

John A. Boykin, Lindley W. Camp, and Durwood T. Pye, all of Atlanta, for defendant in error.

MacINTYRE Judge.

Bonnie South was convicted in the criminal court of Fulton County for maintaining a lottery. His certiorari, after sanction and answer, was overruled by Fulton superior court and his exception to that ruling affirmed by the Court of Appeals. South v. State, 68 Ga.App. 835, 24 S.E.2d 416. The Supreme Court denied certiorari. Thereafter, the remittitur having come down to the superior court, South presented to the judge of the criminal court of Fulton County a petition for the writ of error, which he denominated 'coram nobis' seeking again to review said conviction and to set aside and vacate the same, and obtain a new trial. A rule nisi issued and the State demurred. The demurrer was sustained and South applied for a writ of certiorari complaining of that ruling. Upon the overruling of the certiorari by the superior court, he filed the present bill of exceptions.

In the trial of this case, which was affirmed and reported in 68 Ga.App. 835, 24 S.E.2d 416, an accusation on which there was a former conviction was introduced in evidence to show the general scheme of the defendant in the operation of a lottery, as well as to show the purpose for which he had and possessed the apparatus used in the operation of the same. This accusation was admitted over the objections that it was irrelevant and that it put the defendant's character in issue.

The objections here, which were urged for the first time in the defendant's writ of error coram nobis, were: That the affidavit which was attached to the former accusation and which was introduced in evidence, while signed by the person purporting to make the same, did not show that it was attested by an officer authorized to administer oaths; that the name of the officer purporting to administer the oath did not appear thereon; that neither the prosecutor's name nor that of the solicitor appeared upon the face of the accusation; that this fact was unknown to the defendant; that the accusation was void and was illegally introduced in evidence; that the trial judge, had he known that said accusation of the former offense was void, would not have allowed the same in evidence; and that if the same had not been in evidence, it is not likely that the jury would have convicted him. We think the evidence, exclusive of the evidence here in question, was sufficient to support a conviction. Furthermore, the evidence in the case was such that the trial judge could, without abusing his discretion, say that, if the judgment was vacated with the evidence in question deducted, it is reasonably apparent to the judicial mind that the remaining evidence would probably not produce a different verdict. See in this connection Jackson v. State, 56 Ga.App. 250, 256, 192 S.E. 454.

In 24 C.J.S., Criminal Law, § 1606, p. 147, it is stated: 'The writ of error coram nobis will not lie where there is another adequate remedy, as by motion for new trial or in arrest of judgment, appeal, or motion to recall the remittitur. * * * A writ of error coram nobis lies for an error of fact not apparent on the record, not attributable to the accused's negligence, and which, if before the court, would have prevented rendition of the judgment.' In Billups v. Freeman, 5 Ariz. 268, 52 P. 367, it is said: 'The office of the ancient remedy of a writ of error coram nobis was to have a judgment corrected by an examination, by the court rendering it, into some question of fact affecting the validity and regularity of the proceedings, such as the death of one of the parties before verdict or judgment, or the infancy, insanity, or coverture of the defendant, and which was not made an issue and determined in the action. No error of a court in applying the law to the facts could be rectified by means of the writ, nor could any error of fact which was adjudicated in the action be reviewed. Kemp v. Cook, 79 Am.Dec. 681. The writ has become obsolete, having been superseded by the modern practice of applying to the court by motion for the relief sought. Pickett's Heirs v. Legerwood, 7 Pet. 144 [8 L.Ed. 638; Life] Association [of America] v. Fassett, 102 Ill. 315. We are not disposed to encourage the digging into the moldering dust heaps of the past for wornout and discarded remedies, or to sanction in the future the practice of applying to this court in this manner for relief, which can more speedily and...