State v. Merritt, 661

• Decision Date: 18 June 1965
• Docket Number: No. 661,661
• Court: North Carolina Supreme Court
• Parties: STATE, v. Funtroy MERRITT.

Page 687

142 S.E.2d 687

264 N.C. 716

STATE, v. Funtroy MERRITT.

No. 661.

Supreme Court of North Carolina.

June 18, 1965.

T. W. Bruton, Atty. Gen., and Theodore C. Brown, Jr., Staff Atty., for the State, petitioner.

E. D. Kuykendall, Jr., Greensboro, for prisoner, respondent.

SHARP, Justice.

The first question presented by this appeal is: Did the judge presiding over a session of the Superior Court of Guilford County have authority to hear and pass upon a petition filed in Guilford County under G.S. § 15-217 et seq. to review the constitutionality of the prisoner's convictions in any county other than Guilford?

The North Carolina Post-Conviction Hearing Act (G.S. §§ 15-217 through 15-222) originated as Sess.Laws of 1951, ch. 1083. Codified as Gen.Stats. ch. 15, art. XXII, it is entitled 'Review of the Constitutionality of Criminal Trials.' Like the Illinois act on which it was modeled, Miller v. State, 237 N.C. 29, 74 S.E.2d 513 (see People v. Dale, 406 Ill. 238, 92 N.E.2d 761, for the Illinois act), the Act was passed 'to replace the ancient and little known or understood writ of error coram nobis,' 29 N.C.L.Rev. 390, 391, insofar as the review of the constitutionality of criminal trials is concerned. The remedy afforded by the Act 'closely resembles that available under the common-law writ.' People v. Bernatowicz, 413 Ill. 181, 184, 108 N.E.2d 479, 481, cert. den. 345 U.S. 9288 73 S.Ct. 788, 97 L.Ed. 1358. The writ of error coram nobis 'is brought for an alleged error of fact, not appearing upon the record, and lies to the same court, in order that it may correct the error, which it is 479, 481, cert. den. 345 U.S. 928, 73 S.Ct. had the fact in the first instance been brought to its notice.' Battle, J., in Roughton error of fact, not appearing upon the record, ours.) This explanation has been widely adopted, Ernst v. State, 179 Wis. 646, 192 N.W. 65, 30 A.L.R. 681; 18 Am.Jur.2d, Coram Nobis and Allied Statutory Remedies § 2 (1965); 5 Wharton, Criminal Law v. Brown, 53 N.C. 393, 394. (Italics 1957). 'Error in fact,' however, does not mean that guilt or innocence is an issue in coram nobis proceedings. '(I)t is not the purpose of the writ to review evidence presented at the trial.' 18 Am.Jur.2d, Coram Nobis and Allied Statutory Remedies § 8 (1965); see In re Taylor (I), 229 N.C. 297, 49 S.E.2d 749; In re Taylor (II), 230 N.C. 566, 53 S.E.2d 857.

'The writ of error coram nobis can only be granted in the court where the judgment was rendered,' State v. Daniels, 231 N.C. 17, 25, 56 S.E.2d 2, 7; accord, Latham v. Hodges, 35 N.C. 267; 18 Am.Jur.2d, Coram Nobis and Allied Statutory Remedies § 4 (1965), although under the common law of England it would lie in the king's bench from the court of common pleas, Casteldine v. Mundy, 4 B. & Ad. 90, 110 Eng.Rep. 389 (K.B.). When the General Assembly undertook to provide a simpler and more effective post-conviction remedy than the common-law writ for convicted persons who, through no fault of their own, had suffered substantial and unreviewed deprivations of constitutional rights in the original trial, it extended the jurisdiction of the Superior Court to one county, Wake, in addition to that in which the conviction took place. By Sess.Laws of 1959, ch. 21, however, the legislature struck out the reference to Wake County and thereby limited jurisdiction under the Act to the Superior Court in which a prisoner was convicted. The applicable provision of G.S. § 15-217 now reads: 'The proceeding shall be commenced by filing with the clerk of the superior court of the county in which the conviction took place, a petition with a copy thereof, verified by affidavit.' The section also requires the prisoner to serve another copy upon the solicitor 'who prosecutes the criminal docket of the superior court of the county in which said petition is filed.' Without any doubt this change was dictated by the same considerations which limit relief in common-law coram nobis proceedings to the court in which the original error was committed.

In the county of conviction are to be found the records of the trial which the prisoner attacks, as well as the court officials and other persons likely to have any knowledge of the truth or falsity of the prisoner's allegations that he suffered a substantial denial of his constitutional rights. If entries in the minutes are to be corrected or judgments vacated, manifestly this should be done in the county where they are required to be kept. 'A writ of that kind (coram nobis) can be had only when allowed by the court where the record is. * * *' Williams v. Edwards, 34 N.C. 118, 119. The solicitor who prosecuted the prisoner or the solicitor's successor in office has the duty to represent the State and to defend the constitutionality of the trial if, in fact, there has been no violation of the prisoner's constitutional rights. He had a duty, as well, to see that the trial judge, the original defense counsel, and the prosecuting attorney are not misrepresented and falsely accused of malfeasance in office. Too many prisoners these days apparently believe they have nothing to lose and everything to gain by making any charge which has ever been successfully employed by another prisoner, regardless of whether there is any truth in it. Of course, it goes without saying that, if the solicitor has reason to believe that a prisoner's constitutional rights have been violated, he owes equal duties to the prisoner and...