State ex rel. Lopez v. Killigrew
| Decision Date | 20 February 1931 |
| Docket Number | 25,952 |
| Citation | 174 N.E. 808,202 Ind. 397 |
| Parties | State, ex rel. Lopez v. Killigrew et al |
| Court | Indiana Supreme Court |
Opinion Denying Rehearing Filed February 20, 1931.
Original proceeding in Supreme Court.
Juan Lopez filed in the Supreme Court a petition for a writ of mandate against Alvina M. Killigrew and another, as clerk and judge respectively of the Lake Criminal Court, to direct the defendants to permit the relator to file his verified petition for a writ of error coram nobis. An alternative writ of mandate was issued, and later a mandatory writ.
Mandatory writ made permanent.
Russell B. Harrison and Milton L. Clawson, for appellant.
James M. Ogden, Attorney-General, and Earl B. Stroup, Deputy Attorney-General, for the State.
The relator herein filed his verified complaint asking that a writ of mandate issue out of this court commanding and directing the defendants in their official capacities respectively to allow the relator to file in the criminal court of Lake County his verified petition for a writ of error coram nobis. An alternative writ of mandate was granted, and, after answer by defendants herein the writ of mandate was made permanent without opinion. The defendants now file a petition for a rehearing, insisting that this court erred in holding that relator was entitled to file his petition for a writ of error coram nobis in the criminal court of Lake County, and in making the alternative writ of mandate permanent. Defendants' petition and supporting brief have raised questions as to the practice applicable to petitions for writs of error coram nobis; and also have raised collateral questions as to the legal effect of granting the writ, especially as related to a new trial. In view of the importance of clarifying the points of practice involved and of pointing out certain legal effects of granting a writ of error coram nobis, we feel that our action on defendants' petition for a rehearing should be accompanied by an opinion.
The writ of error coram nobis is a recognized remedy of our legal procedure. Berry v. State (1930), ante 294, 173 N.E. 705; Shock v. State (1929), 200 Ind. 469, 164 N.E. 625; Davis v. State (1927), 200 Ind. 88, 161 N.E. 375; Partlow v. State (1922), 191 Ind. 657, 134 N.E. 483; Id., 194 Ind. 172, 141 N.E. 513; Trattner v. State (1916), 185 Ind. 188, 113 N.E. 243; Wheeler v. State (1902), 158 Ind. 687, 63 N.E. 975; Sanders v. State (1882), 85 Ind. 318, 44 Am. Rep. 29; V. Ind. Law Jour. 603. The Constitution of Indiana requires that all courts shall be open and that "every man, for injury done him in his person, property or reputation shall have remedy by due course of law." The writ of error coram nobis is a part of our "due course of law"; the criminal court of Lake County has jurisdiction over the subject-matter of a petition for a writ of error coram nobis and the relator is as much entitled to file his petition for a writ of error coram nobis as he is to file a complaint in a civil action in a court of competent jurisdiction. "A party has the legal right to bring his action in any court which has jurisdiction of the subject matter and which can obtain jurisdiction of the parties." Illinois Life Ins. Co. v. Prentiss (1917), 277 Ill. 383, 115 N.E. 554, cited in 15 C. J. 735. When a court has jurisdiction over a class of cases and one seeking relief invokes the jurisdiction of the court in the manner prescribed by law, the particular cause is, ipso facto, under the jurisdiction of the court and the court cannot refuse jurisdiction.
A judge can, however, refuse to exercise jurisdiction, and the denial of permission to the relator to file his petition in the criminal court of Lake County amounted to a refusal by the judge of that court to exercise jurisdiction. It is analogous to a refusal to allow a defendant to file a motion for a new trial. The writ of mandate was relator's proper, and only, remedy; State, ex rel., v. Smith (1903), 69 Ohio St. 196, 68 N.E. 1044; In re Runk v. Thomas (1911), 200 N.Y. 447, 94 N.E. 363; In re Grossmayer, Petitioner (1900), 177 U.S. 48, 44 L.Ed. 665, 20 S.Ct. 535; and there was no error in issuing the writ unless, as defendants urge, the peculiar facts of relator's case bring it within the recognized rule that a court will not issue a writ of mandate if it is apparent that it will prove to be an ineffectual remedy.
The relator's verified complaint discloses that, prior to the filing of his petition for a writ of error coram nobis, the judgment entered against relator in the original case had been fully executed. The defendants contend that, by reason of relator's having paid the fine and served the 30 days imposed by the sentence, there can be no second trial of the relator; that any question as to guilt or innocence of relator will be moot; that the criminal court of Lake County has exhausted its jurisdiction and has no power to proceed further; that, by a plea of former jeopardy, the relator can defeat the very thing he purports to seek--a new trial on the merits of his cause. If the criminal court of Lake County should grant to the relator the relief sought, the judgment in the original case will be set aside and vacated, and the relator will be put on trial again on the original charge. And, if, as urged by defendants, the criminal court of Lake County then will be powerless to proceed with a second trial, the relator will, in effect, secure an acquittal, since all the legal consequences of his trial and conviction will be wiped out. Obviously, this court will not by its mandate require a trial court to do an act that must result either in nothing or in forcing the trial court into being a party to an illegitimate acquittal. But we do not agree that the criminal court of Lake County will be powerless to try the relator a second time in case the hearing on the merits of relator's petition for a writ of error coram nobis should result in the court's granting the writ. On a new trial, the question of the guilt or innocence of the relator will not be a moot question. Granting that he cannot recover the amount of the fine and costs imposed upon conviction in the first trial, it does not follow that relator's effort to clear his reputation presents a moot question. There are cases holding that an appeal in a criminal case will be dismissed as moot upon a showing that the appellant has satisfied the judgment; but the better reasoning is with the cases to the contrary, and the theory and result of the latter cases are more consonant with justice. The right of reputation was early recognized in Anglo-American law and the machinery of legal redress is at the disposal of any person to vindicate his good name. Many utterances of a defamatory nature are actionable per se and, in the very beginning of the law of defamation, the rule was established that language which imputed a species of misconduct to which the law attached a criminal punishment was actionable per se, without any allegations or proof of actual pecuniary injury. Thus, it is clear that the law recognizes and protects the individual's interest in his reputation from defamation that imputes criminal misconduct, regardless of pecuniary damage; and it would seem absurdly inconsistent to dismiss as moot a proceeding initiated to clear one's reputation of the infamy and stigma resulting from an allegedly erroneous conviction on a criminal charge, even though the one seeking vindication cannot, for reasons of public policy, recover the amount of his fine and costs, nor compel the state to pay damages for his unjust imprisonment.
Furthermore, the relator sets out in his verified petition for a writ of error coram nobis that the United States government is about to deport the relator, and that the proceeding for such deportation is based upon the sentence and conviction which the relator is seeking to have set aside. If the relator should be granted the relief sought by his petition for a writ of error coram nobis and, when put on trial the second time, should be acquitted, the penalty of deportation will be avoided.
The defendants further urge that in case the relator is granted the relief sought by his petition (i. e. that the judgment in the original trial be vacated and that the relator be put on trial again on the original charge) the relator can interpose a plea of former jeopardy and thus nullify the action of the trial court in granting a new trial. But this assumption ignores the function of the writ of error coram nobis.
"The proceeding [i. e. petition for a writ of error coram nobis] adopted by the appellant is, in its general features and in its consequences, closely analogous to a motion...
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State ex rel. Lopez v. Killigrew , 25952.
...202 Ind. 397174 N.E. 808STATE ex rel. LOPEZv.KILLIGREW et al.No. 25952.Supreme Court of Indiana.Feb. 20, Original proceeding for a writ of mandate by the State, on the relation of Juan S. Lopez, against Alvina M. Killigrew and another, to compel defendants, as clerk and judge, respectively,......