Stephenson v. State

• Decision Date: 27 June 1933
• Docket Number: No. 25310.,25310.
• Parties: STEPHENSON v. STATE.
• Court: Indiana Supreme Court

205 Ind. 141

186 N.E. 293

STEPHENSON

v.STATE.

No. 25310.

Supreme Court of Indiana.

June 27, 1933.

Original petition by David C. Stephenson, opposed by the State of Indiana, for a writ of error coram nobis.

Petition dismissed.L. D. Hill and Blankenbaker & Hall, all of Terre Haute, for appellant.

James M. Ogden, Atty. Gen., and V. Ed. Funk and Joseph W. Hutchinson, both of Indianapolis, for the State.

PER CURIAM.

This is an original petition in this court for a writ of error coram nobis.

The petitioner was charged and convicted of murder, and upon appeal to this court the judgment was affirmed. Stephenson v. State, 179 N. E. 633.

Jurisdiction to grant writs of error coram nobis lies in the court that rendered the judgment. Partlow v. State, 191 Ind. 657, 134 N. E. 483.

It has been said that after appeal and decision of a cause by this court, the judgment is the judgment of this court, but we cannot agree with this proposition. A common-law appeal brought the whole case up to the appellate tribunal for re-examination on the merits as to both law and facts, and for decision as though no decree had ever been rendered. Upon decision of the case by the Appellate Court upon such an appeal, the judgment, of course, became the judgment of the Appellate Court.

A writ of error at common law is a method of bringing cases to an Appellate Court for review of supposed errors of law committed by the trial court. The case is not open for re-examination upon the whole merits, but every controverted question of fact is excluded from consideration, and the Appellate Court is confined to reviewing the rulings of the inferior court upon questions of law.

The statutory appeal to this court is in the nature of a common-law writ of error, and brings the record to this court for a review of assigned errors of law committed at the trial and apparent upon the record. We are not concerned with controverted questions of fact. If the judgment is affirmed, it stands and is still the judgment of the lower court. If it is modified or reversed, the mandate of this court directs the lower court to modify its judgment or set it aside and grant a new trial, in which case another judgment results, but the final judgment is the judgment of the trial court and not of this court.

The effect of the decision of an appealed case upon the judgment below is the same in criminal and civil cases, and a decision by the Appellate Court has the same effect as a decision by this court. It is the law that a court of general jurisdiction may entertain an action to enjoin the operation of a judgment at law after an appeal and affirmance of the judgment by the Appellate Court. Hitt v. Carr, 77 Ind. App. 488, 130 N. E. 1.

If it were true that after affirmance the judgment becomes the judgment of the Appellate Court, it is clear that a court of inferior jurisdiction cannot enjoin its operation.

Because any change or modification of the record pending an appeal would interfere with the appellate jurisdiction of this court, the jurisdiction of the trial court to act in the case is suspended pending the appeal, but upon leave being granted by this court it may entertain such a petition pending the appeal, and, if the petition is denied, the record of the proceeding may be certified to this court as part of the appeal, and, if the petition is granted and the facts certified to this court, the appeal will be dismissed and the judgment may be then vacated and a new trial had.

“The writ of error coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication, made while some fact existed which if before the court would have prevented the rendition of the judgment, and which without any fault or negligence of the party was not presented to the court.” Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29.

The evidence by which the existing fact can be proved must be set out in the petition, and the petition must allege facts showing that by the exercise of diligence the petitioner would not have been able, and was not able, to produce the facts relied upon at the trial or before judgment, by motion for a new trial or otherwise. In so far as applicable, the sufficiency of the petition will be tested by the rules applicable to motions for a new trial because of newly discovered evidence.

In Wheeler v. State, 158 Ind. 687, 63 N. E. 975, it is said that a writ will not be granted except where it clearly appears that the petitioner had a valid defense in the facts of the case.

The state may dispute the facts alleged, and the issue of fact thus arising is to be decided by the court without a jury.

The writ will reach only matters not cognizable on motion for a new trial, or in arrest of judgment, or on appeal. It represents that justice has been circumvented, and that in effect a fraud has been perpetrated upon the court that entered the judgment. The only relief that can be granted is the setting aside of the judgment and the granting of a new trial.

In so far as they are not in agreement with this opinion, the cases of Partlow v. State, 191 Ind. 657, 134 N. E. 483,Partlow v. State, 194 Ind. 172, 141 N. E. 513, 30 A. L. R. 1414,Partlow v. State, 195 Ind. 164, 144 N. E. 661, 30 A. L. R. 1414, and Davis...