State v. Stanley

• Decision Date: 12 February 1910
• Parties: STATE v. STANLEY.
• Court: Missouri Supreme Court

125 S.W. 475

225 Mo. 525

STATE v. STANLEY.

Supreme Court of Missouri. Division No. 2.

February 12, 1910.

1. CRIMINAL LAW (§ 997) — CORRECTING JUDGMENT — WRIT OF ERROR CORAM NOBIS.

For an error in fact in the proceedings of a court of record, a writ of error coram nobis will lie to correct the judgment.

2. CRIMINAL LAW (§ 997) — CORRECTING JUDGMENT — WRIT OF ERROR CORAM NOBIS.

A writ of error coram nobis lies only to correct an error of fact not appearing upon the face of the record.

3. CRIMINAL LAW (§ 997) — CORRECTING JUDGMENT — WRIT OF ERROR CORAM NOBIS — TIME FOR PROCEEDINGS.

A writ of error coram nobis does not authorize any court to recall its adjudications after a lapse of the term.

4. CRIMINAL LAW (§ 1193) — APPEAL — JUDGMENT — VACATING — WRIT OF ERROR CORAM NOBIS.

Where the last day of the time granted for filing a bill of exceptions in a criminal case came on January 13th, which was Sunday, the Supreme Court, in deciding that this was the last day on which it could be filed or the time therefor extended, is presumed to have known that it was Sunday, as it takes judicial notice of the calendar, and every presumption must be indulged in favor of its judgment, so that its error, if any, in so ruling was an error of law, and a writ of error coram nobis cannot be invoked to correct its judgment, after the end of the term at which it was rendered.

5. CRIMINAL LAW (§ 997) — VACATING JUDGMENT — MATTER AVAILABLE BEFORE JUDGMENT.

Where a party, complaining that a judgment would not have been rendered had a certain fact been called to the attention of the court, knew of the fact, or might by ordinary diligence have known of it, and failed to bring it to the attention of the court, when he had an opportunity to do so, he cannot afterwards do so.

6. CRIMINAL LAW (§ 1193) — APPEAL — JUDGMENT — WRIT OF ERROR CORAM NOBIS.

Where a convicted defendant filed no brief on appeal, and made no oral argument, and failed to file any motion for rehearing in the 10 days allowed, he cannot, after the end of the term at which the judgment was rendered, invoke the aid of a writ of error coram nobis to set aside the judgment because of an error of fact, since a party seeking to avail himself of this remedy must show that it was owing to no negligence on his part that the fact which would have changed the judgment was not brought to the attention of the court.

7. TIME (§ 10) — BILL OF EXCEPTIONS — TIME TO FILE — EXTENSION — COMPUTATION OF TIME.

The rule that in computing the days granted a party in term time to file motion for new trial Sunday is excluded does not apply to the computation of days granted for the filing of a bill of exceptions in vacation.

Application by Warren Stanley for a writ of error coram nobis to vacate a judgment entered on appeal from a conviction in a criminal prosecution. Application denied.

See, also, 221 Mo. 547, 120 S. W. 771.

T. L. Hawkins, for plaintiff in error. E. W. Major, Atty. Gen., and Jno. M. Dawson, Asst. Atty. Gen., for the State.

GANTT, J.

This is an application for a writ of error coram nobis by the petitioner, to set aside and vacate the judgment of this court affirming the judgment of the circuit court of Dunklin county on June 8, 1909. The facts upon which this application is based are as follows: On the 15th of October, 1904, an information was filed in the circuit court of Dunklin county by the prosecuting attorney of said county, charging the petitioner herein with murder in the first degree of one F. E. Holliday on the 15th of May, 1904. The defendant was duly arraigned, and entered his plea of not guilty, and at the November term, 1905, of the Dunklin county circuit court he was convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of 50 years. After unavailing motions for a new trial and in arrest of judgment, the defendant therein, the petitioner here, appealed to this court. At the April term, 1909, of this court that judgment and sentence was affirmed. 221 Mo. 547, 120 S. W. 771. It appears that when the appeal was granted in the circuit court on the 14th of December, 1905, the court made an order allowing the defendant to file his bill of exceptions on or before the first Monday in May, 1906, and afterwards, on the 7th day of May, 1906, it being the first day of the May term, 1906, of the said court, it was ordered that the time for filing the bill of exceptions in the said cause be extended 90 days from that date, and afterwards on the 24th day of July, 1906, it being in vacation of said court, the judge of said court in writing, for good cause shown, further extended the time of the filing of the said bill to the third day of the November term, 1906, of the said court, and filed said written extension in the office of the clerk of the said court. Afterwards, on the 12th day of November, 1906, the time was extended 60 days from the expiration of the time theretofore granted for the filing of the said bill. It then appears that on the 14th of January 1907, in vacation, the counsel for the defendant and the prosecuting attorney filed a written stipulation extending the time 30 days from the expiration of the time previously fixed. Afterwards, on the 12th day of February, 1907, in vacation, the judge of the said court further extended the time to the 15th day of March, 1907, and filed his order with the clerk of the circuit court, and thereafter on the 12th day of March, 1907, the defendant filed his bill of exceptions in the said cause. The cause was set down for trial in this court for April 13, 1909, at the April term, 1909, of this court, and was duly submitted by the state on brief. No counsel appeared for the defendant, and no brief was filed on his behalf. In the brief filed for the state the point was made that the bill of exceptions could not be considered, for the reason that the same was not filed within the time allowed by the order of the court made on the 12th day of November, 1906, but that the 60 days then allowed expired on January 13, 1907, and consequently the order made on January 14, 1907, was invalid because the court had lost jurisdiction to extend the same. In the opinion of this court it was said on this point: "The court allowed several extensions of the time for filing the bill of exceptions in this case. We have from the record that on July 24, 1906, the time for filing the bill was by the court extended to the third day of the November term, 1906, of said court, which third day was the 14th day of November, 1906. The court made an order extending the time for filing the bill 60 days from the expiration of the time theretofore granted for filing the same, but it is shown by the record that the next order granting a further extension of time was not made until the 14th day of January, 1907, so that by computing the time from the 14th day of November, 1906, to the 14th day of January, 1907, it will be readily seen that 61 days or one day more than the time allowed had elapsed between the last and immediately preceding order of the court in this record, and any further extension of the time for filing the bill, after the 60 days previously allowed had expired, availed the defendant nothing. State v. Simmons, 124 Mo., loc. cit. 446 ." It was accordingly ruled that the bill of exceptions could not be considered by this court in reaching its judgment.

As a ground for his application for a writ of coram nobis it is alleged: "It also appears from the record, but not from the opinion, that the bill of exceptions was filed within the time mentioned by the last order (to wit, the order of November 12, 1906). It also appears from the record that this court held that no bill of exceptions was filed within the time allowed by the trial court, and in such holding this court was mistaken in and ignored a matter of fact apparent upon the face of the record, of which fact this court must take judicial cognizance. In other words, the trial court had previously extended the time for the filing of a bill of exceptions to the third day of the November term, 1906, which date this court must judicially know, and from the opinion did know, was the 14th day of November, 1906. This court judicially determined that a grant of leave to file bill of exceptions made on the 14th of January, 1907, was without the time, i. e., that it was 61 days, instead of the 60 days granted by the trial court. In this, this court was in error in the matter of fact, which fact is apparent of record, and within the judicial knowledge of this court,...