Yessen v. State, 29196

• Decision Date: 20 May 1955
• Docket Number: No. 29196,29196
• Citation: 234 Ind. 311,126 N.E.2d 760
• Parties: Assen YESSEN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 760

126 N.E.2d 760

234 Ind. 311

Assen YESSEN, Appellant, v. STATE of Indiana, Appellee.

No. 29196.

Supreme Court of Indiana.

May 20, 1955.

Dissenting Opinion May 26, 1955.

James C. Cooper, Public Defender, Rushville, Perry W. Cross, Deputy Public Defender, Muncie, for appellant.

Edwin K. Steers, Atty. Gen., Frank E. Spencer, Deputy Atty. Gen., for appellee.

BOBBITT, Judge.

Appellant commenced this action in the LaPorte Superior Court by filing petition for writ of error coram nobis by which he sought to set aside a judgment of said court rendered on or about March 308 1949 ¹ and to be granted a trial by jury.

A motion for a change of venue from the judge was filed by appellant and the Hon. T. C. Mullen, a competent and reputable member of the LaPorte County Bar was chosen as special judge. From a denial of a petition for writ of error coram nobis, this appeal is prosecuted.

Since this is appellant's second appeal involving the same acts, a review of the entire proceedings as shown by the record of this court, of which we take judicial notice, is relevant. In re Harrison, 1953, 231 Ind. 665, 109 N.E.2d 722; Blanton v. State, 1955, Ind.Sup., 124 N.E.2d 382.

In September of 1948 appellant was charged with rape of a twelve year old girl under Acts 1941, ch. 148, § 3, p. 447, being § 10-4201, Burns' 1942 Replacement. He waived trial by jury, and was tried by the court on a plea of not guilty. He was found guilty as charged, and sentenced to the Indiana State Prison. An appeal was taken from this judgment, Yessen v. State, 1950, 228 Ind. 316, 92 N.E.2d 621. The questions there raised were that the finding of the court was contrary to law and not sustained by sufficient evidence. It was also asserted in the original appeal that the trial court erred in overruling the motion for a new trial because of newly discovered evidence. This question was not considered by this court in that appeal for the reason that the affidavits setting out the newly discovered evidence were not in the bill of exceptions. Three affidavits were filed setting out newly discovered evidence, and four counter-affidavits were filed by the state.

Paul Owens, foster father of the prosecuting witness, was the signer of an affidavit to the effect that the minor child was treatened and coerced to make the statement and testify as she did at the trial, and that she had told her foster father that she had not been molested by appellant, either before or after the trial. There was also an affidavit by the foster mother of the prosecuting witness to the same effect as the affidavit by the foster father. The third affidavit in support of newly discovered evidence was by the prosecuting witness to the effect that she was threatened and coerced by a detective and that she had not had sexual intercourse with appellant. The counter-affidavits were filed by police officers and a welfare worker and were to the effect that no threats had been made against the prosecuting witness, nor had she been in any way coerced to testify or to make any statement against appellant.

The motion for a new trial in the first case was ruled upon by the regular judge who presided at the trial.

In September of 1953 appellant filed in the LaPorte Superior Court a verified petition for writ of error coram nobis raising the same questions that were before the trial court on the motion for a new trial in the original proceedings. The affidavits which had been submitted in support of appellant's motion for a new trial were also introduced in evidence at the hearing on the petition for writ of error coram nobis.

The material questions presented in this appeal are the same as those which were before the trial court in the motion for a new trial. With the exception of the question of perjured testimony all were settled adversely to appellant in Yessen v. State, 1950, 228 Ind. 316, 92 N.E.2d 621, supra.

The judgment of the trial court denying appellant's petition for writ of error coram nobis must be affirmed for two reasons:

(1) It is apparent from the record that appellant has resorted to the remedy of coram nobis for the purpose of bringing before this court the affidavits in support of his motion for a new trial and which were not considered by us in Yessen v. State, supra, because they were not contained in the bill of exceptions. It is true that the rule that affidavits in support of a motion for a new trial must be contained in a special bill of exceptions has been changed since Yessen v. State, supra, was decided.

Rule 1-15, Rules of the Supreme Court, 1954 edition. However, Rule 1-15, supra, does not operate retroactively. Neither did its adoption give appellant a right of rehearing, nor did it authorize him to bring such affidavits before this court through a subsequent proceeding in coram nobis.

A proper remedy was afforded appellant by his appeal and he may not now employ coram nobis as a substitute in order to bring the question of perjured testimony before this court. Coram nobis cannot be used as a substitute for an appeal. Jordan v. State, 1954, Ind.Sup., 121 N.Ed.2d 643; Dowling v. State, 1954, 233 Ind. 426, 118 N.E.2d 801, 803.

(2) However, if we were to decide that the question of whether or not appellant was convicted upon perjured testimony is now properly before us, we would still be compelled to affirm the judgment because this question was one of fact to be determined by the trial court. The rule applicable here is ably stated in Bolton v. State, 1945, 223 Ind. 308, at pages 311, 312, 60 N.E.2d 742, 743, 158 A.L.R. 1057, as follows:

'Whether a confession by a witness that he gave perjured testimony at the trial is presented in an ordinary motion for new trial or by a petition for writ of error coram nobis the question is: When did the witnesses tell the truth? The tribunal by which it is to be decided is the trial court, subject of course to review but not under rules more favorable to appellant than apply to review of a trial court's determination, upon conflicting evidence, of any other question of fact.

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'* * * we add the following from the concurring opinion of Judge Cardozo in People v. Shilitano, 1916, 218 N.Y. 161, 112 N.E. 733, 739 L.R.A. 1916F, 1044: 'Three witnesses for the prosecution have stated under oath to the trial judge that their testimony upon the trial was false. It became his duty to say whether they were conscience-stricken penitents, or criminal conspirators to defeat the ends of justice. He has held them to be conspirators. Unless we can say that he was wrong, and that they were not conspirators, but penitents, we have no right to reverse his order.''

We cannot say appellant was convicted upon perjured testimony until that fact is first determined by the trial court, and in the absence of a clear abuse of discretion the finding of the trial court on such question will not be disturbed. No abuse of discretion is alleged or shown in this case.

The same affidavits on the question of perjured testimony were before the special judge at the hearing on the petition for writ of error coram nobis as were filed in support of the motion for a new trial. At the hearing on the petition for writ of error coram nobis the judge filed a 'Court's Memorandum' ² in which he stated that after considering the evidence presented he believed 'that the prosecutrix told the truth at petitioner's [appellant's] trial and not in her recanting affidavit or testimony.'

When two separate trial judges having before them the same evidence, have passed upon the question of perjured testimony, and both have found that the perjury, if any, was committed in the recantation and not in the testimony at the trial, certainly this court cannot say that both trial judges were wrong in their determination of the credibility of the witnesses and substitute our judgment for theirs in order to establish that appellant herein was convicted upon perjured testimony.

The evidence before both trial courts was conflicting. It is so well settled that this court will not weigh conflicting evidence or judge the credibility of witnesses that it should not be necessary to repeat the rule. The rule that this court will not weigh conflicting evidence or judge the credibility of witnesses applies to coram nobis. Lykins v. State, 1952, 231 Ind. 258, 261, 108 N.E.2d 270.

For the reasons above stated, the judgment of the trial court should be affirmed.

Judgment affirmed.

HENLEY, C. J., and ACHOR and LEVINE, JJ., concur.

EMMERT, J., dissents.

EMMERT, Chief Justice (dissenting).

On the first appeal of this case, Yessen v. State, 1950, 228 Ind. 316, 92 N.E.2d 621, Judge Gilkison and I filed separate dissenting opinions. The majority opinion was subsequently overruled as to the sufficiency of the evidence to sustain the conviction by the decision in Burton v. State, 1953, 232 Ind. 246, 111 N.E.2d 892. The second point of the decision that affidavits in support of a motion for a new trial could not be considered on appeal unless they were brought into the record by a bill of exceptions was superseded by Rule 1-15 adopted September 25, 1953, which in part provided, 'Such affidavits shall be considered as evidence without the introduction thereof on the hearing on the motion', and 'shall be a part of the record without a bill of exceptions.' Under the law as it now stands an appeal involving the same facts would result in a reversal of the conviction.

In Burton v. State, 1953, 232 Ind. 246, 111 N.E.2d 892, supra, we held a conviction for sodomy would not be affirmed where it rested upon the uncorroborated testimony of the prosecutrix. We quoted with approval the following authorities:

'Pseudologia phantastica is a mixture of lies with imagination. Not infrequently, this [is] the basis of alleged sexual assault. Girls assert they have been raped, sometimes recounting as true a story they have heard, falsely naming individuals or describing them.' 1...