State v. Swindall

• Decision Date: 01 December 1925
• Docket Number: A-5663.
• Parties: STATE ex rel. v. SWINDALL et al. MITCHELL, CO. ATTY.,
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

241 P. 456

33 Okla.Crim. 210

STATE ex rel. MITCHELL, CO. ATTY., v. SWINDALL et al.

No. A-5663.

Court of Criminal Appeals of Oklahoma

December 1, 1925

Rehearing Denied Feb. 6, 1926.

Syllabus by the Court.

The writ of error coram nobis is a common-law remedy, afforded on application to the trial court for the correction of errors of fact unknown at the time of the trial to the party seeking relief and to the court.

The writ of coram nobis will not be allowed when, after the defendant and his counsel had knowledge of the error, a statutory remedy existed, which could have been then invoked.

The writ cannot be invoked upon existence of a fact actually brought to the knowledge of the court or the accused before rendition of judgment, and it will not be invoked to relieve from consequences arising after judgment.

Additional Syllabus by Editorial Staff.

Under wife abandonment statute (Laws 1923, c. 78, § 2, amending Comp. St. 1921, § 1856), power to make modifying orders and grant paroles after term is lodged exclusively with Governor although under former statute court had power to make modifying orders and grant paroles after term.

In view of Comp. St. 1921, § 2345, adopting common law in criminal practice, common-law writ of coram nobis or writ of error coram nobis may be used in proper case.

Application by the State, on the relation of Dan Mitchell, County Attorney of Garfield County, for a writ of prohibition, to be directed to Charles Swindall and another, Judges of the District Court within and for Garfield County, restraining them from granting the motion of Oscar Leierer to withdraw a plea of guilty to a charge of wife abandonment theretofore entered. Writ granted.

Geo. F Short, Atty. Gen., J. Berry King, Asst. Atty. Gen., Dan Mitchell, Co. Atty., A. L. Zinser, Asst. Co. Atty., and Dyer & Keim, all of Enid, for the State.

McKeever Moore & Elam, of Enid, for defendants.

BESSEY P.J.

The state of Oklahoma, on the relation of Dan Mitchell, county attorney of Garfield county, asks this court to issue a writ of prohibition, restraining Charles Swindall and James B. Cullison, judges of the district court within and for Garfield county, from granting a motion of Oscar Leierer, asking leave of said district court to withdraw his plea of guilty to a charge of wife abandonment theretofore entered in said court.

Oscar Leierer was arrested upon a complaint charging him with wife abandonment. The complaint was drawn under the provisions of chapter 78 of the Session Laws of 1923, the second section of which provides:

"That section 1856 of the Compiled Laws of Oklahoma, 1921, be amended to read as follows: 'Every person who shall without good cause abandon his wife in destitute or necessitous circumstances and neglect and refuse to maintain or provide for her, or who shall abandon his or her minor child or children under the age of fifteen years and willfully neglect or refuse to maintain or provide for such child or children, shall be deemed guilty of a felony and upon conviction thereof, shall be punished by imprisonment in the State penitentiary for any period of time not less than one year or more than ten years."'

The section following provides that the warden of the penitentiary shall put the prisoner to work at a wage of $2.50 per day, and provides that such wages shall be paid to the wife or other dependent. It is further provided in the same act:

"Upon conviction of any person, under the provisions of this act, the Governor may, before or after sentence, parole said person upon the recommendation of the trial judge in whose court he was convicted, upon said person entering into an undertaking in the form provided by the judge of said court, with two or more good and sufficient sureties. Said sureties shall qualify and make a property statement as provided by law, and the said bond shall be approved by the trial judge before said application is made to the Governor, and a certificate that said bond has been approved by the trial judge shall accompany any application made hereunder. Said bond shall be conditioned that the said convicted person shall within ten days from the first day of each month, pay to the clerk of the court where he was convicted such amount as has been fixed by the court for the support of said wife or child or children, which money shall be paid by the clerk of the court as provided herein for wages at the penitentiary."

H. G. McKeever, attorney for Oscar Leierer, the county attorney, V. P. Crowe, and the trial judge, Charles Swindall, agreed that, if Oscar Leierer would enter his plea of guilty, a judgment should be rendered against him, fixing his punishment at confinement in the penitentiary for a term of two years, and that the trial judge would recommend to the Governor of the state of Oklahoma that the defendant be paroled upon condition that he pay to the abandoned wife, for a period of 10 years, the sum of $15 a month, and a further sum of $750 for hospital expenses expended by the wife. It was assumed by all parties concerned that upon the recommendation of the trial judge the Governor would issue the parole, as provided by the act above quoted. Though not appearing of record, proof has been offered indicating that it was further agreed that, in the event the Governor failed or refused to grant such parole, Oscar Leierer should be permitted to withdraw his plea of guilty and the charge against him be tried to a jury. Whereupon the defendant Oscar Leierer entered his plea of guilty and the following judgment was rendered and entered against him:

"Now, on this 1st day of December, A. D. 1924, the same being one of the regular judicial days of a term of this court, the above-entitled matter comes regularly on for hearing on the arraignment of the defendant herein. The state of Oklahoma appears by V. P. Crowe, county attorney of Garfield county, state of Oklahoma, and the defendant appears in his own proper person and by his attorneys, McKeever, Moore & Elam, and thereupon the defendant waives the reading of the information herein and enters his plea of guilty to wife desertion, as charged in the information on file in the above-entitled cause. It is therefore by the court considered, ordered, adjudged, and decreed that the defendant serve a term of two years in the state penitentiary

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