Walsh v. Tuggle
| Decision Date | 29 October 1946 |
| Citation | 303 Ky. 200,197 S.W.2d 253 |
| Parties | WALSH v. TUGGLE, Warden, et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Criminal Division Loraine Mix, Judge.
Petition by James A. Walsh against Guy Tuggle, Warden, etc., and others for a writ of error coram nobis. From a judgment dismissing his petition, petitioner appeals.
Judgment affirmed.
James H. Polsgrove, of Louisville, for appellant.
Eldon S. Dummit, Atty. Gen., Guy H. Herdman, Asst. Atty. Gen., and Frank A. Ropke, Commonwealth's Atty., and Carl C. Ousley Jr., Asst. Commonwealth's Atty., both of Louisville, for appellees.
VAN SANT, Commissioner.
This is an appeal from a judgment of the Criminal Division of the Jefferson Circuit Court dismissing appellant's petition for a writ of error coram nobis. Appellant is confined in the Kentucky State Penitentiary under sentence of twenty years which he received upon his trial on a charge of rape committed upon one Clara Dale. The judgment of conviction was entered October 25, 1944, and was affirmed by this Court in October, 1945. Walsh v. Commonwealth, 300 Ky. 545 189 S.W.2d 840.
A writ of error coram nobis is a common law writ whereby one imprisoned upon conviction of a crime may obtain a new trial by producing proof that, at the previous trial, he unknowingly was deprived of a defense which probably would have established his innocence. Anderson v. Buchanan et al., 292 Ky. 810, 168 S.W.2d 48. But, if the petition for the writ is based on newly discovered evidence, it, as well as any like motion for a new trial, must allege, and the petitioner must prove, facts to show he used due diligence before or upon his former trial to discover the existence of the evidence he offers in support of his petition. Duff v. Commonwealth, 296 Ky. 689, 178 S.W.2d 191. The ground here urged is newly discovered evidence, which, if presented at the original trial, would have been admissible for the purpose of attacking the credibility of the prosecutrix. The only reason assigned by appellant for not discovering the evidence before his trial is that he was confined in jail in lieu of filling bond; but the record shows that he was ably represented by a competent attorney, and made no endeavor to obtain a continuance of his case for the purpose of procuring additional time to perfect his defense. In other words, at the time of his trial, he was content to rest his case on the...
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Underhill v. Thomas
...be disregarded because of appellants' failure to show proper diligence. Duff v. Commonwealth, 296 Ky. 689, 178 S.W.2d 191; Walsh v. Tuggle, 303 Ky. 200, 197 S.W.2d 253; Cowan v. Commonwealth, Ky., 281 S.W.2d 636. Appellants did not testify or offer and evidence at the trial when they were c......
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...Buchanan, 292 Ky. 810, 168 S.W.2d 48. Nor has due diligence been shown. Duff v. Commonwealth, 296 Ky. 689, 178 S.W.2d 191; Walsh v. Tuggle, 303 Ky. 200, 197 S.W.2d 253. In the latter case it was held that newly discovered evidence merely attacking the moral character and credibility of the ......
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