State ex rel. Emmert v. Hamilton Circuit Court

• Decision Date: 29 May 1945
• Docket Number: 28090.
• Parties: STATE ex rel. EMMERT, Attorney General, et al. v. HAMILTON CIRCUIT COURT et al.
• Court: Indiana Supreme Court

61 N.E.2d 182

223 Ind. 418

STATE ex rel. EMMERT, Attorney General, et al. v. HAMILTON CIRCUIT COURT et al.

No. 28090.

Supreme Court of Indiana

May 29, 1945

James A. Emmert, Atty. Gen., Frank E. Coughlin, 1st Asst. Deputy Atty. Gen., Forrest P. Jones, Deputy Atty. Gen S. Lloyd Garrison, of Noblesville, Cleon H. Foust, of Columbia City, and Robert Hollowell, Jr., of Indianapolis for relators.

Cassius M. Gentry, of Noblesville, for respondents.

PER CURIAM.

In the court where he was tried and convicted of murder twenty years ago, David C. Stephenson asserts by a pleading, denominated a petition for writ of error coram nobis, that he should now have another trial. Relators are aware of the difficulties of marshalling in 1945 evidence to prove facts that existed and were susceptible of proof in 1925. They fear the possibility of an erroneous ruling by respondent court resulting in the unwarranted release of a guilty convict. Alleging that the State has no other adequate protection against misuse of the writ of error coram nobis, relators ask us to exercise in an unprecedented manner a strong arm of this court, namely, a writ of prohibition. The use of one of two extraordinary remedies is thus sought to prevent the anticipated abuse of the other. Each has its proper function. Neither should be perverted.

Respondents concede that the temporary writ was properly granted because the record below did not then show unavailability of the Judge who presided at the trial. State ex rel. Meyer v Youngblood, 1943, 221 Ind. 408, 48 N.E.2d 55. But the fact seems to be, as alleged by respondents and not denied by relators, that he is unavailable and this case is decided upon the assumption that the record will be made to state the fact.

The function of prohibition is to keep inferior courts within their jurisdiction. § 3-2201, Burns' 1933, Sec. 3 Baldwin's 1934; State ex rel. Gannon v. Lake Circuit Court, Ind. Sup., 61 N.E.2d 168. As stated therein 'the issues in such a proceeding should be narrowly drawn.' We shall consider only the questions necessary to a decision.

Relators' brief calls attention to the fact that in Stephenson's 'supplemental petition filed in the Hamilton Circuit November 16, 1944, he sets forth thirty nine (39) proceedings he has taken during the last nineteen (19) years including six (6) petitions for writ of error coram nobis, and nine (9) habeas corpus actions, all but one of which he states were on the same subject matter.' We agree with relators that there should be an end to this litigation. But the place to stop it is in respondent court. Respondent Judge may, and we shall assume that he will, refuse to entertain successive petitions that merely reiterate grounds that were or could have been stated in Stephenson's motion for a new trial made prior to his appeal. From 1816 until 1882 Indiana got along without coram nobis. It was resurrected by Judge Elliott for 'an extraordinary case.' See first line of opinion in Sanders v. State, 1882, 85 Ind. 318, 44 Am.Rep. 29. It is not again mentioned in our reports until in Wheeler v. State, 1902, 158 Ind. 687, 63 N.E. 975, a writ was held properly denied. If trial courts will reserve the remedy for extraordinary cases of gross miscarriage of justice, few writs will be granted.

Stephenson's latest petition is said to present nothing substantially different from the contentions made in his petition before this court at the same time as his appeal, Stephenson v. State, 1932, 205 Ind. 141, 197, 179 N.E. 633, 186 N.E. 293, 296, wherein it was stated that 'the allegations are not sufficient.' This, say relators, is res judicata. But the case decided that this court was without jurisdiction. A dictum in a case the court was not empowered to decide may be persuasive but it is not conclusive.

It is shown by the pleadings herein that in 1942 Stephenson filed in respondent court a petition for writ of error coram nobis which was docketed as a civil action, the State demurred, respondent Judge sustained the demurrer, entered an order denying the writ, and Stephenson prayed an appeal which was never perfected. This also, say relators, is res judicata. It may be. But when we granted the temporary writ of prohibition, the only pleadings below were the petition and a demurrer thereto which respondent Judge had overruled. Ordinarily, former adjudication is pleaded by answer. If the State's demurrer raises the question the error is already saved for appeal. If not, there is still time to file an answer of res judicata. The important consideration is whether the present and former petitions state substantially the same facts and ask the same relief. This the respondent court has jurisdiction to determine.

Relators finally urge that the State has no other adequate remedy. They assume that no appeal lies from an order granting a writ of error coram nobis. It is true that none has been provided by statute. But this is not necessary. In Warren v. Indiana Telephone Co., 1940, 217 Ind. 93, 26 N.E.2d 399, 408, we said that an 'appellant may not be denied his right to present his case to this court for review because the Legislature has not provided a means for bringing it here.' The opinion further disapproves 'the language contained in the many cases which seem to suggest that the right of appeal to this court exists only by the grace of the legislative branch of the government.' In Joseph E. Seagrams & Sons v. Board of Com'rs, etc., 1943, 220 Ind. 604, 45 N.E.2d 491, we disregarded an express legislative fiat that 'there shall be no appeal from such judgment' and decided an appeal upon its merits. ...