State v. Miller

• Decision Date: 09 March 1946
• Docket Number: 36554.
• Citation: State v. Miller, 161 Kan. 210, 166 P.2d 680 (Kan. 1946)
• Parties: STATE v. MILLER.
• Court: Kansas Supreme Court

166 P.2d 680

161 Kan. 210

STATE v. MILLER.

No. 36554.

Supreme Court of Kansas

March 9, 1946

Appeal from District Court, Labette County; L. E. Goodrich, Judge.

The Miller was convicted of entering a bank with intent to rob and after five years he filed an application for writ of error coram nobis. From an order refusing to dissolve an order in proceeding for the writ of error coram nobis, the State appeals.

Judgment reversed with directions.

Syllabus by the Court.

1. Although the common-law writ of error coram nobis has not been specifically abolished in this state there remain few if any, grounds, for invoking it, in view of the broad remedies now provided by our comprehensive codes of civil and criminal procedure.

2. Under the common-law, proceedings upon motion for writ of error coram nobis, are regarded as civil in character.

3. Newly discovered evidence does not constitute grounds for issuance of the writ of error coram nobis under the general rule at common law.

4. Trial errors subject to correction by motion for new trial by appellate review or otherwise by remedies provided in the codes of civil and criminal procedure constitute no warrant for issuance of a writ of error coram nobis.

5. Five years after conviction and sentence for entering a bank with intent to rob the defendant filed in the district court in which he had been tried a petition for a writ of error coram nobis, supporting his petition with a number of affidavits similar in character and all purporting to support a defense of alibi. Record examined, and held that no grounds were shown to warrant the issuance of the writ.

Leon W Lundblade, Asst. Atty. Gen., (A. B. Mitchell, Atty. Gen., and John B. Markham, Co. Atty., of Parsons, on the brief), for appellant.

Abe Miller pro se.

HOCH Justice.

This is an appeal by the state from an order of the district court refusing to disolve an order in a proceeding for a writ of error coram nobis.

Abe Miller, the appellee, was convicted in Labette county, in May, 1940, of entering a bank with intent to rob the bank or the persons therein, and was sentenced under the habitual criminal act to a term of not less than fifteen years nor more than fifty years in the penitentiary, where he has since been confined.

In July, 1945, he filed an application for a writ of error coram nobis in the court where he had been tried and convicted. In September, 1945, the district court ordered the sheriff of Labette county and the warden of the penitentiary to produce the appellee in court for further proceedings in the cause. Upon being advised of this order, apparently granted ex parte, the state filed a motion to dissolve the order and also a motion for 'a new trial.' Both motions were overruled and the state appeals.

The application for the writ was as follows:

'Comes now Abe Miller the defendant in the above entitled cause and respectfully moves and pray the court for an order vacating and holding for naught the verdict judgment and sentence in the above entitled action and grant the movant his relief. For the following reasons and grounds to wit.

'1. Because of newly discovered evidence.

'2. The jury received papers, evidence and exhibits not authorized by the court.

'3. Misconduct on the part of the jury tending to prevent a fair and due consideration of the case.

'4. The verdict was decided by means other than a fair expression of opinion on the part of all jurors.

'5. Erroneous rulings by the court.

'6. Competent witnesses were denied defendant.

'7. Competent evidence in behalf of the defendant was excluded by the court.

'8. The verdict is contrary to law.

'9. That the verdict was contrived by spurious pretentions of evidence contrary to the true facts in the premises and not obtained by a lawful trial of the true evidence according to the requirements of due process of law.

'10. Evidence contrary to the public policies of the State of Kansas was allowed in open court.

'11. A motion for a new trial on competent grounds was denied defendant.

'12. State had no cooperating wintesses to issue of facts.

'13. Movants witnesses testimony was completely ignored.

'14. Perjury was permitted in open court.

'Violation of

'Article 10--Bill of Rights

'Amendments 5-6-8 and 14 to the constitution of the United States. Witnesses can be subpoenaed to verify each and every contention and allegation.

'In support of the petition, there were attached thereto five affidavits. All five were similar in character, each affiant asserting that he saw the defendant at a time and place making it impossible for him to have been at Altamont, Labette county, at the time when it was alleged the crime had there been committed. One of the five affiants stated in his affidavit that he had been a witness for the defendant at the trial and another of the five stated that his deposition was taken at the time and used at the trial. In a statement submitted with the affidavits the petitioner stated that the affidavit of one of the affiants 'could be used as new evidence as this man was not a witness at the trial.' It appears, therefore, to be a fair inference that only one of the five could be said to be new witnesses. No other showing was made in connection with the application except these five affidavits in the nature of abibis.

'Upon this showing, together with the filing of a poverty affidavit, the trial court issued the order, heretofore mentioned, to the sheriff and to the warden of the penitentiary.

'The motion by the state to dissolve the order was based upon the following grounds:

'1. That the Court has no jurisdiction over the person of Abe Miller, the defendant in said case.

'2. That the Court has no jurisdiction over the person of Robert H. Hudspeth, Warden of the Kansas State Penitentiary at Lansing.

'3. That the procedure involved in the application for a writ of coram nobis is antiquated, obsolete, has been disproved by the Supreme Court of the State of Kansas on several occasions and has been abolished indirectly by statute.

'4. That compliance with said writ would be an effort on behalf of the Court to change or amend his final order made on the 28th day of May, 1940, since said term is past, no appeal having been taken and no jurisdiction is now resting with the District Court of Labette County, Kansas, upon the person or subject-matter of the above-entitled action.' (Abs. p. 25.)

It is unnecessary to take note of the state's motion for a new trial on the motion to dissolve. It does not appear that motion for a new trial was necessary since questions solely of law were involved.

Briefly stated the ancient common-law writ of error coram nobis was a writ used to bring for review or modification a previous judgment of the court, because of some error of fact, and not of law, affecting the validity of the judgment, and not brought in issue at the trial. 24 C.J.S., Criminal Law, § 1606, p. 143. It is stated in 31 Am.Jur. 323 that the writ, where available, 'is used to obtain a review of a judgment where it appears that certain mistakes of fact have occurred which were not put in issue, were unknown to the court, and were not passed upon.' (Italics supplied.) Our own decisions are in line with such statements as to the nature of the writ. In Asbell v. State, 62 Kan. 209, 61 P. 690, it was said:

'The function of the common-law writ is to bring to the attention of the court, for correction, and error of fact,--one not appearing on the face of the record, unknown to the court or party affected, and which, if known in season, would have prevented the judgment which is challenged.' 62 Kan. at page 213, 61 P. at page 691.

Similar statements were made in Dobbs v. State, 63 Kan. 321, 65 P. 658, and in Collins v. State, 66 Kan. 201, 71 P. 251, 60 L.R.A. 572, 97 Am.St.Rep. 361. In the former case it was said:

'This writ cannot be used to obtain a review of the facts presented to the court on the trial, or which might have been so presented at that trial by the exercise of diligence.' 63 Kan. at page 324, 65 P. at page 659.

In the latter case it was said:

'All the decisions are to the effect that the writ lies only to correct errors of fact, in ignorance or disregard of which the judgment was pronounced, to relieve from which no other remedy exists. None of the courts has used it to relieve from the misfortune of being unable to prosecure an appeal for the correction of errors of law.' 66 Kan. at page 203, 71 P. at page 251, 60 L.R.A. 572, 97 Am.St.Rep. 361.

From facts hereinbefore noted it clearly appeared that alibi was a principal defense in the trial. Ti make sure on the point we have examined the district court files in the case. The record conclusively shows that to be true. The defendant served the statutory notice that alibi would be a defense and in the list of prospective alibi witnesses appear the names of four of the five affiants in the present proceeding. The court instructed the jury as to defendant's defense of alibi and the instruction was certainly not unfavorable to the defendant. The affidavits raise no new issue of fact and at best would be nothing more than cumulative. Accordingly, the writ of error coram nobis was here inappropriate even if otherwise available. However, we think it desirable to examine somewhat further the place of the writ under our present procedure.

Although the writ of error coram nobis has not been specifically abolished by statute in this state our decisions leave little if any grounds for regarding it other than obsolete. The last case in which the nature of the writ was examined at any length was State v. Hawkins, 142 Kan. 874, 51 P.2d 914, 915. In that case Hawkins was convicted of murder and about two years...