State v. Choquette

• Decision Date: 12 November 1921
• Docket Number: 23,582
• Citation: 109 Kan. 780,202 P. 68
• Parties: THE STATE OF KANSAS, Appellee, v. LAWRENCE CHOQUETTE, Appellant
• Court: Kansas Supreme Court

202 P. 68

109 Kan. 780

THE STATE OF KANSAS, Appellee, v. LAWRENCE CHOQUETTE, Appellant

No. 23,582

Supreme Court of Kansas

November 12, 1921

Decided July, 1921

Appeal from Marshall district court; FRED R. SMITH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CORAM NOBIS--Not Available--False Statements of Juror on His Voir Dire. A writ of error coram nobis will not lie from a judgment of conviction in a felony case because one of the jurors made false statements concerning his qualifications although it is alleged that the defendant had no knowledge of the false statements and could not discover that they were false until after sentence had been pronounced.

2. SAME. That a juror gave false answers concerning his prejudice against a defendant on trial in a felony case is not a fact which, if it had been known to the court, would have prevented a verdict of guilty and judgment thereon, although a new trial might have been compelled if the matter had been presented to the court in a motion therefor.

Edgar Bennett, of Washington, and P. G. Wadham, of Marysville, for the appellant.

Richard J. Hopkins, attorney-general, and Walter T. Griffin, county attorney, for the appellee.

OPINION

MARSHALL, J.:

This is an appeal from an order denying an application for a writ of error coram nobis.

The defendant was convicted of three felonies charged in one information. On the examination of one of the jurors concerning his qualifications, he testified in substance that he had not formed any opinion concerning the guilt or innocence of the defendant. The juror was not asked whether he had expressed any opinion concerning that matter, although he was examined at length.

The verdicts of guilty were returned March 3, 1921, and on March 4, judgment was pronounced; but the court, before sentencing the defendant, asked his counsel if they desired to file a motion for new trial; they informed the court that they did not; and no such motion was filed. On March 5, one of the attorneys for the defendant was informed that the juror mentioned had said, on the day the trial was commenced and on leaving his home to attend court as a juror, that he would send the defendant to the penitentiary for life if he had anything to say about it. The application for the writ was filed on March 8, and was heard on March 23 and 24. All the proceedings in the action occurred at the February term of the district court of Marshall county.

The application alleged that the defendant did not know and had no way of discovering the bias or prejudice of the juror, and did not discover the same, and could not with due diligence have discovered it so as to present it in a motion for new trial.

1. This case is concluded by Hamlin v. The State, 67 Kan. 724, 74 P. 242, where this court said:

"A writ of error coram nobis is not available to review an adjudicated issue of fact where the error, if any, was open to correction upon a motion for a new trial or upon appeal to a higher court.

"The writ will not lie from a decision in a criminal prosecution holding members of a jury to be qualified, although it is alleged that the jurors made false statements as to their qualifications, and also that defendant had no knowledge of their prejudice against him until long after the motion for a new trial had been made and overruled." (Syl. PP 1, 2.)

In Asbell v. The State, 62 Kan. 209, 213, 61 P. 690, the following language is quoted from Sanders v. The State, 85 Ind. 318:

"Under our system all matters of fact reviewable by appeal, or upon motion, must be presented by motion for new trial, and cannot be made the grounds of an application for the writ coram nobis." (p. 329.)

2. Another reason for not reversing the judgment of the trial court is...