State ex rel. Wilkerson v. Bomar

• Decision Date: 05 March 1964
• Citation: State ex rel. Wilkerson v. Bomar, 213 Tenn. 499, 376 S.W.2d 451, 17 McCanless 499 (Tenn. 1964)
• Parties: , 213 Tenn. 499 STATE of Tennessee ex rel. Calvin E. WILKERSON, Plaintiff in Error, v. Lynn BOMAR, Warden, Tennessee State Penitentiary, Defendant in Error.
• Court: Tennessee Supreme Court

Page 451

376 S.W.2d 451

17 McCanless 499, 213 Tenn. 499

STATE of Tennessee ex rel. Calvin E. WILKERSON, Plaintiff in Error, v. Lynn BOMAR, Warden, Tennessee State Penitentiary, Defendant in Error.

Supreme Court of Tennessee.

March 5, 1964.

Calvin E. Wilkerson, pro se.

George F. McCanless, Atty. Gen., Edgar P. Calhoun, Asst. Atty. Gen., Nashville, for defendant in error.

WHITE, Justice.

Calvin E. Wilkerson is confined in the State Penitentiary in Nashville, Tennessee upon conviction of robbery accomplished by the means of a dangerous weapon. He filed a petition herein for the writ of habeas corpus. The trial court dismissed the petition denying the relief sought. Wilkerson has appealed to this Court and has assigned several errors which are to the effect:

(1) That the trial court, upon his original trial in Knoxville, failed to appoint a court reporter and that the narrative bill of exceptions sent to this Court in the original appeal was not a true record of the trial;

(2) That the original trial court erred in refusing to grant a new trial upon the hearing of a petition for the writ of error coram nobis;

(3) That 'the State Supreme Court erred by failing to grant petitioner a new trial by reason of his appeal';

(4) That this Court erred in failing to grant the petitioner a 'new trial by reason of the writ of error coram nobis';

(5) That the trial court erred in admitting certain evidence at the trial; and Finally, that the trial court in the instant appeal erred in stating that 'under all the authorities if the facts relied upon for this writ were put in issue upon the original trial, the writ will not lie'.

A brief and argument has been filed in support of such assignments. The assignments will be disposed of collectively and not individually, but all of them will be fully considered.

The defendant, Lynn Bomar, Warden, Tennessee State Penitentiary, has filed a reply brief in which it is said that all matters now raised by the petitioner, plaintiff in error, have been disposed of by the Court in an opinion rendered by this Court in 1961.

In our opinion, written by Mr. Chief Justice Burnett, we said, in part:

'In the trial court he (Wilkerson) was represented by two very competent Knoxville lawyers, who were appointed to do this service by the trial judge. After the trial had ended and a conviction procured by the State, this appointed counsel prepared for Wilkerson a narrative bill of exceptions and perfected an appeal. After doing this, this appointed counsel for excellent reasons assigned in a letter to the trial judge withdrew from the case. When the record reached the Clerk's office of this Court, a member of the Court was informed of the fact that the trial counsel had withdrawn, and on this information this Court appointed the present counsel, the Honorable Ray L. Jenkins, to represent the plaintiff in error. This suit is an illustration of what the bar does in exercising all of its facilities, means, energy and knowledge in representing one when he is appointed by the Court to do so. It is remembered that counsel receives absolutely no compensation. From what is hereinafter to be related it will be seen what the present counsel has done to try in every legitimate way to relieve this man from this conviction. This record likewise shows that the trial counsel did all that was possible for them to do.

'The assignments of error herein and brief filed on behalf of this man by Mr. Jenkins is one of the best prepared briefs and the most persuasive that the writer of this opinion has read. Frankly, reading this brief without reading the entire record one is almost persuaded on account of the logic, reason and sympathy for the man that is brought forth in the argument.

'The first assignment is that the trial court erred in failing to appoint a court reporter in the case. This assignment is fully answered by the opinion of this Court in Beadle v. State, 203 Tenn. 97, 310 S.W.2d 157, and no further comment is necessary to answer this assignment. From what has just been said, it is obvious that the bill of exceptions here is in the narrative form.'

More recently, in the case of Tucker v. State, 210 Tenn. 646, 648-649, 361 S.W.2d 494, the Court said:

This Court has long prior to the decision in the Griffin case [Illinois] (1956) [351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891] heard criminal appeals on narrative bill of exceptions; in fact as stated in Beadle v. State, 203 Tenn. 97, 310 S.W.2d 157, it is the preference of this Court to have such a bill of exceptions. Approximately twenty per cent of criminal appeals in this State are heard on narrative bill of exceptions, and this Court by the acceptance of this method has long afforded all defendants, indigent or not, a full and adequate appellate review. The Supreme Court of the United States has approved a narrative bill of exceptions. Miller v. United States, 317 U.S. 192, 63 S.Ct. 187, 87 L.Ed. 179.'

Therefore, assignment number one is overruled.

After the conviction in the Criminal Court at Knoxville, and before the appeal to...