Fugate v. State

85 Miss. 94

Opinion

Whitefield C. J.,

delivered the opinion of the court.

■ The petitioner was tried and convicted of murder, and sentenced to be hanged, at the February term, 1904:, of the circuit ■court of Prentiss county. From that conviction he prayed an$ obtained an appeal to this court, which is this day disposed of. ■After the adjournment of the court, he, in vacation,.on the 21st day of September, 1904, presented to the circuit judge of that ■judicial district this petition for writ of error coram nobis, in which, in brief, he seeks to have the judgment of the said circuit court condemning him to .death arrested, and all proceedings stayed, until the determination of his petition for this writ of error coram nobis. The grounds upon which he prays for this writ are that three of the jurors -(Theodore Linglebeek, Perry Majors, and. Luther Gamer) who tried defendant had formed and expressed, each, an opinion against the petitioner, although each had denied upon his voir dire that he had formed or expressed any opinion. (The reporter will set out the particular averments as to what each of these jurors has, as alleged, said.) It is to be specially noted just here that the ninth ground of the motion for a new trial assailed juror Linglebeek for the same reason — to wit, that he had formed and expressed an opinion; and the tenth ground so assails the juror Luther Garner. It is said, however, by counsel for appellant, that the particular facts on which he was proceeding for a motion for a new trial as to these two jurors were different, from those on which he was proceeding as to these same jurors in this proceeding; but it is clear, at all events, that the subject of their disqualification because of the formation and expression of opinions was presented to the circuit court in the motion for a new trial, but no evidence was introduced touching the same, and it was abandoned, so that Perry Majors is clearly the only juror of these three of whom no complaint was made on this score in the circuit court trial.

There is some confusion apparent in the books as to the appropriate office of a writ of error coram vobis and of the writ of error coram nobis. We quote, as the most accurate statement we have seen on this subject, the language of the court in the case of Teller v. Wetherell, 6 Mich., 49-51: “When the object of the writ is to remove a judgment from an inferior into a superior court for review and the correction of errors of law or fact, it is called a 'writ of error’ only — nothing more. But when the object of the writ is to correct an error of fact in the same court that rendered the judgment, it is called a writ of 'error coram nobis’ if it be in the king’s bench, and a 'writ of error coram vobis’ if it be in the common pleas. A writ of error is an original writ, and in England issues out of the court of chancery, and runs in the name of the king. With us, it issues from this court, and, under our present judicial organization, can issue from no other. It is 'in the nature as well of a certio rari to remove a record from an inferior into a superior court as of a commission to the judges of the superior court to examine the record, and to affirm or reverse it according to law.’ 2 Saund., 101a. The writs coram nobis and coram vobis differ from a writ of error in two particulars: (1) They contain no certiorari clause, for there is no record to be certified; (2) they have no return-day, as they are in the nature of a commission only to the court to correct error. They lie for errors of fact, and for errors in the process, or through the default of the clerks. 1 Arch. Prac., 234. They do not lie when the error is in the judgment of the court itself, and not in the process. 1 Arch. Prac., 235. The writ is called a ‘writ of error coram nobis’ in the king’s bench, because the record and proceedings are stated in the writ to remain ‘before us’ (/coram nobis’) — that is, in the court of king’s bench. 1 Arch. Prac., 234; 2 Saund., 101a. The king, by a fiction of law, is supposed to preside in person in that court. Tn the common pleas, where the king is not supposed to preside, it is called a ‘writ of error coram vobis/ because the record and proceedings are stated in the writ to remain ‘before you’ {’coram vobis’) — that is, the king’s justices. 2 Tidd. Prac., 1056a, note ‘y.’ See ‘A Writ of Error Coram Vobis in the Common Pleas,’ in Arc. Forms, 243; 2 Dunlap’s Prac., 1125. . . . The judgment for plaintiff for an error of fact on a writ coram nobis or coram vobis is that the judgment be revoked; on a writ of error, that it be reversed. Camp v. Bennett, 16 Wend., 48.”

It is to be observed, as said in United States v. Plumer, 3 Cliff., 58 (Fed. Cas., No. 16,056), that, apart from the fact that these formal differences designated the particular court in which the judgment was rendered and to which the writ was returnable, they were never of any particular importance, as the office of the writ of error was the same in both courts,

It is perfectly clear, we think, on the authorities, that the writ is applicable to criminal as well as civil proceedings. Says Elliott, J., in Sanders v. State, 85 Ind., 324 (44 Am. St. Rep., ) : “This was a very common, remedy in civil actions, but was seldom resorted to in criminal cases. Although rarely used in criminal cases, -we find it conceded by courts and writers to be an appropriate remedy in criminal prosecutions as well as in civil actions.” To the same effect, see U. S. v. Plumer, 3 Cliff., bottom of page 59 (Fed. Cas., No. 16,056); State v. Calhoun, 50 Kan., 523 (32 Pac., 38; 18 L. R. A., 838; 34 Am. St. Rep., 141); 5 Ency. Pl. & Pr., 32, par. 7. Indeed, it is obvious from the very nature and office of the writ that it applies as well to criminal as civil proceedings, in a proper case. For the “office of the writ is to bring the attention of the court to, and obtain relief from, errors of fact, such as the death of either party pending the suit and before judgment therein; or infancy, where the party was not properly represented by guardian; or coverture, where the common-law disability still exists; or a valid defense existing in the facts of the case, but which, without negligence on the part of the defendant, was not made, either through duress or fraud or excusable mistake.” Ency. Pl. & Pr., vol. 5, par. 2. It is true; doubtless, as said.by Elliott, J., that the writ “is seldom used in criminal proceedings;” but this results from the necessary differences between the steps usually taken -and the 'mode of procedure in a civil and a criminal trial- — in other words, from the inherent differences in the two modes of procedure. Wherever, in any procedure, civil or criminal, a proper case is made for the issuance of .the writ, it still exists as at common law, and may still, therefore, be used, unless a statute forbids.. Ency. PL & Pr., vol. 5, p. 30. Our own court has so said in James v. Williams, 44 Miss., 47. As well said by Oowan, J., in Smith v. Kingsley, 19 Wend., 620: “The power, therefore, remains as at common law, except as to the mere form, ‘coram nobis resident ’ . . . We, therefore, have.lost the name of the writ, but nothing more.”

As a striking and conclusive illustration of the necessity that the writ, or some substitute for it, should exist in criminal practice, we refer to Calhoun v. State, supra; Sanders v. State, supra, and especially to the case of Ex parte Gray, 77 Mo., 160. The statute of Missouri provided that, when any person under eighteen years of age was convicted of a felony, he should be sentenced to imprisonment in the county jail, and not in the penitentiary. Gray, though under eighteen years of age when the felony was committed, had been sentenced to the penitentiary at a term of a circuit court, and after the adjournment of the term he filed his petition for this writ to have the judgment set aside; and, it appearing by satisfactory evidence that the fact was as stated, the judgment was revoked, in order that the defendant might be sentenced according to law. This is but one instance illustrative of the necessity of the writ in criminal practice, and a thousand might be conceived.

But'whilst the writ is recognized as existing in this state (see James v. Williams, supra; Fellows v. Griffin, 9 Smed. & M., 362; Parkinson v. Waldron, 7 Smed. & M., 189), there is-rarely any occasion to resort to this writ in modern criminal-practice, as shown by the observations in Martin Pickett's Heirs v. Ledgerwood, 7 Pet., 144 (8 L. ed., 639), where the court say: “It cannot be questioned that the appropriate úse of the writ of' error coram nobis is to enable a court to correct its'own'errors-r those errors which precede the rendition’of judgment. ■ In practice, the same end is now generally attained by motion, sustained, if the case require it, by affidavits; and it is observable that so far has the latter mode superseded the former in the British practice that Blackstone does not even notice this writ among his remedies. It seems that it is: still in frequent use in-some of the states, and, uponpoints of fact to- which the remedy extends, it might be beneficially résorted to as the means-of submitting a litigated fact to the decision of a jury — an end which,under the mode of proceeding by motion, might otherwise require a feigned issue, or impose upon a judge the alternative of deciding a controverted point upon affidavit, or opening a judgement, perhaps to the -material prejudice of .the plaintiff, in order to let in a plea. But in general, and in the practice of most of the states, this remedy is nearly exploded, or at least superseded by that of amending on motion. The cases in which it is held to be the appropriate remedy will show that it will work no failure of justice if we decide that it is not one of those remedies over which the supervising power of this court is given by law.” Usually, therefore, a simple motion or petition will accomplish the same purpose which the former procedure by way of writ of error coram nobis anciently secured.

Thus far as to the writ, its nature and office, and as to its still existing in criminal practice in this state in rare cases. But the difficulty in securing it in this case lies deeper. It is said in Am. & Eng. Ency. of PL & Pr., vol. 5, p. 29, that “an error of fact, for the purpose of this procedure, does not exist in newly discovered evidence.” In Sanders v. States 85 Ind., 329 (44 Am. St. Rep., 29) — by far the most luminous and exhaustive discussion of the subject we have anywhere found — it is said: “It is our opinion that the courts have the power to issue writs in the nature of the writ coram nobis, but that the writ cannot be so comprehensive as at common law, for remedies are given by our statute which did not exist at common law; — the motion for a new trial and the right of appeal — and these very materially abridge the office and functions of the old writ. These afford an accused ample opportunity to present for review questions of fact arising upon or prior to the trial, as well as questions of law, while at common law the writ of error allowed him to present to the appellate court only questions of law. Under our system, all matters of fact reviewable by appeal or upon motion must be presented by motion for a new trial, and cannot be made the grounds of an application for the writ coram nobis. Within this rule must fall the defense of insanity, as well as all other defenses existing at the time of the commission of the crime. Within this rule, too, must fall all cases of accident and surprise, of vprdicts against evidence, of newly discovered evidence, and all like matters.” We think this a sound declaration of the present office and scope of this writ, from which, it necessarily follows that it cannot be invoked in our practice for the purpose of revoking the judgment by showing that jurors had formed or expressed opinions unfavorable to the defendant. Such assailment of the integrity of the trial jury, for reasons clearly apparent, was never within the scope and office of this writ. Without reference, therefore,'to the question whether an appeal would lie from the action of the circuit judge denying this writ in vacation, it is enough to say that, if such an appeal does lie, the writ was properly denied. Because of the ■confusion existing as to the law touching this writ, we have gone somewhat fully into the matter, and attempted to make clear the present use and scope of this writ in the criminal practice of this state.

Affirmed.