State ex rel. Emmert v. Gentry

• Decision Date: 09 October 1945
• Docket Number: 28109.
• Citation: 62 N.E.2d 860,223 Ind. 535
• Parties: STATE ex rel. EMMERT, Attorney General, v. GENTRY, Circuit Judge.
• Court: Indiana Supreme Court

62 N.E.2d 860

223 Ind. 535

STATE ex rel. EMMERT, Attorney General, v. GENTRY, Circuit Judge.

No. 28109.

Supreme Court of Indiana

October 9, 1945

James A. Emmert, Atty. Gen., Frank E. Coughlin First Asst. Atty. Gen., and Forrest P. Jones, of Indianapolis, for appellant.

Cassius M. Gentry, of Noblesville, for appellee.

O'MALLEY Judge.

This is an original action seeking to mandate Cassius M. Gentry as Judge of the Hamilton Circuit Court to grant a change of venue from the judge on issues raised under a petition for writ of error coram nobis.

The petition sought to set aside a judgment of the Hamilton Circuit Court wherein the petitioner, David C. Stephenson was adjudge to be guilty of murder in the second degree. The respondent refused to grant the change on the theory that the proceeding was merely a part of the original criminal action, and further that no change was permissible under the prior holdings of this court.

It has been held that a proceeding for writ of error coram nobis is in the nature of a new, civil action, but must be filed and tried as a part of the proceeding in the original cause and in the court which rendered the judgment of which complaint is made. 24 C.J.S., Criminal Law, § 1606, p. 146; 2 R.C.L. 305, 310.

In State ex rel. Cutsinger v. Spencer, Judge, 1941, 219 Ind. 148, 155, 41 N.E.2d 601, 603, this court stated that, '* * * under the great weight of reason and authority, the petition for the writ of error coram nobis must be considered a new proceeding, civil in nature,--a remedy by which relief may be had from an unconscionable judgment.'

In Quinn v. State, 1936, 209 Ind. 316, 198 N.E. 70, it was held that a proceeding of this kind is on the civil side of law and not on the criminal side. Furthermore it is stated in 30 A.L.R. 686 (annotation) that, '* * * the writ of error coram nobis is a common-law remedy afforded upon application to the trial court, for the correction of errors of fact, unknown at the time of trial to the party seeking relief and to the court.'

It must be taken as a remedy given to lighten the harshness of the old law, and with all the limits and safeguards as it was originally used. Under the common law it was not triable by jury and since under our constitution only those actions are triable by jury which were so triable at common law or so made by statute, a jury cannot be demanded or awarded.

We have repeatedly held that a coram nobis proceeding is in the nature of a motion for a new trial and that it is also in the nature of a civil action. It is in the nature of the former because its object is to secure the setting aside of a judgment and a retrial of the matter upon which judgment had been rendered. It is in the nature of the latter because it presents a new and different cause for trial wherein the burden of proof is on him who requests relief from the judgment. It is not a trial of the original cause, but merely a determination of whether or not some fact or facts were in existence but unknown to the moving party and to the court which, if known, would have caused the court to rule differently.

While in the instant case the judgment involved is one rendered in a criminal cause, the purpose of the proceeding is to set aside the judgment and it is immaterial that the judgment is the outcome of a criminal action. We do not believe that it can be classified as a criminal action merely because it attacks a judgment obtained in that kind of case, and as a civil action when attacking a civil judgment.

In State ex rel. Sawa v. Criminal Court of Lake Co., 1942, 220 Ind. 4, 40 N.E.2d 971, this court held that the proceeding for writ of error coram nobis is not a continuation of the criminal case, and that the state need not furnish counsel or copies of records to enable a 'claimed poor person' to carry on his action to deprive the state of rights concerning his liberty.

In State ex rel. Witte v. Smith, Judge, 1942, 220 Ind. 536, 45 N.E.2d 204, this court held that the petitioner was not entitled to a change of judge. The opinion states that the record did not show whether or not the trial judge and the judge from whom the change was requested were one and the same. In the absence of a showing that the judges were not identical, this court had the right to assume that it was an attempt on the part of the petitioner to secure a change of venue from the particular judge who tried the original case, and it seems to us that the authority of this case should be limited to those cases wherein a change of venue is requested from the presiding judge in the original action.

In State ex rel. Meyer v. Youngblood, 1943, 221 Ind. 408, 48 N.E.2d 55, this court recognized an apparent confusion in its prior decisions on the subject of coram nobis proceedings. There it is said that statements made in State ex rel. Cutsinger v. Spencer, Judge, supra, were made arguendo to express the conclusion of the court that the prosecution of the defendant was concluded by the judgment and the state was no longer the moving party. In that case comment was also made on the fact that a proceeding of this sort is in the nature of a motion for a new trial and likewise in the nature of a civil action, but it must be addressed to the court that entered the judgment and that it is but an incident to the original case.

These statements are made arguendo to express the conclusions of the court, and clearly show that the purpose and course of a coram nobis proceeding is being gradually evolved from the application of logic to the facts of specific cases.

The judge who tried the original action is by experience and knowledge of the proceedings in the original action peculiarly fitted to try any issues which may be raised concerning the judgment which he has entered. He was accepted as an impartial judge either by failure to take a change, by failure to show a sufficient reason for a change, or because of a change having been granted. In any event his position is that of an impartial judge and when he is available certainly no change should be permitted in the coram nobis proceeding which follows. However, when the judge in the original action is not available, a different condition exists. Under such condition, the judge secures jurisdiction to try the matter by reason of being the then presiding judge of the court. He has no special knowledge of or experience in the original action and his position from that standpoint is not superior to that of any other qualified and legally selected judge. Under § 2-1402, Burns' 1933, § 193, Baldwin's 1934, a change from the judge is mandatory on a proper showing in any matter of a civil, statutory, or equitable nature not triable by a jury. This section seems to include all proceedings where issues are formed outside of the criminal branch of law. It may be that there are exceptions created by statute or by the history of the proceeding. But in the instant case, it matters little what particular name is applied to this proceeding or whether it is civil or equitable in its nature, the right to a change cannot be denied.

It is therefore ordered that Cassius M. Gentry, as judge of the Hamilton Circuit Court, is directed to sustain the affidavit and motion of petitioner for change of venue heretofore filed in said court in criminal cause No. 4321, entitled State of Indiana v. David C. Stephenson, and to expunge from his docket the order heretofore entered denying the same.

GILKISON Judge (dissenting).

This is an original action brought by the State of Indiana on the relation of James A. Emmert, Attorney General of Indiana, against Cassius M. Gentry, as Judge of the Hamilton Circuit Court. The relator seeks a judgment of this court mandating the respondent to grant the State of Indiana a change of venue from the respondent judge in a proceeding now pending in the court of said judge, in which the issue is as follows:

David C. Stephenson was duly charged in said court by indictment with the crime of murder in the first degree. He was tried in said court by jury, found guilty of murder in the second degree and sentenced to the state prison for life, nearly twenty years ago, and is now serving said sentence. He has filed a petition (pro se) for writ of error coram nobis in said court. The State filed a demurrer to this petition, which after argument and consideration was overruled by the court. The State then, by the Prosecuting Attorney of the circuit, filed a verified motion for change of venue from the judge. This motion is based on the 7th clause of § 2-1401, § 2-1424, § 9-1304 and § 9-1316 Burns' 1933, § 190, § 207-1, § 2225, § 2222-1 Baldwin's 1934 and Supp.1937. It was overruled by the court. Thereupon this original action was filed.

When a proper application is seasonably made for a change of judge, in a proper proceeding, such change must be granted. It would be prejudicial error to refuse it, and the error will be corrected on appeal. This proposition is so clear that the citation of authorities would be superfluous.

It has been the recent holding of this court, under § 3-2201, Burns' 1933, that when a proper motion for change of venue from the county or from the judge has been filed, in a proper case, and denied by the court, this court may mandate the judge to grant the motion. State ex rel. Daily v. Harrison, Special Judge, 1939, 215 Ind. 106, 18 N.E.2d 770; State ex rel. Williams Coal Co. v. Duncan, Judge, 1937, 211 Ind. 203, 6 N.E.2d 342; State ex rel. Johnson v. Cody, Judge, 1937, 212 Ind. 247, 8 N.E.2d 971; State ex rel. Van Horne v. Sullivan, 1934, 206 Ind. 304, 188 N.E. 672; State ex rel. O'Neill v. Pyle, 1933, 204 Ind. 509, 184 N.E. 776; State ex rel. McGarr v. DeBaun, Judge, 1926, 198 Ind. 661, 154 N.E. 492.

However this...