In Re Winineger's Petition

337 P.2d 445

• Court: Court of Criminal Appeals of Oklahoma
• Decided: March 25, 1959
• Docket: A-12684
• Status: Published

Opinions

BRETT, Presiding Judge.

This is an original proceeding instituted for writ of error coram nobis brought by Jack Winineger. The petitioner complains that he was convicted of the conjoint murder of one Morgan Haddock and sentenced to serve a term of life imprisonment in the state penitentiary. From said conviction the petitioner appealed to this Court and said appeal was disposed of herein by affirmance on May 13, 1953, and rehearing denied on June 3, 1953. Winineger v. State, 97 Okl.Cr. 64, 257 P.2d 526. The petition is properly lodged in this Court, the conviction having been appealed to and affirmed in this Court. Hurt v. State, Okl.Cr., 312 P.2d 169.

In his petition, petitioner alleges, in substance, his trial was conducted in such manner as to deprive him of due process of law and coram nobis is his only remedy. The many allegations in the petition may be summarized as follows: First, he alleges the facts he now desires to present were known by the defendant at the time of trial, but they were suppressed by his counsel’s refusal to let him testify in the case. Second, if he had been permitted to testify at the trial, his testimony would have prevented the judgment. The substance of his contentions in this regard are: (a) that he had a complete alibi to the effect he was answering a call of nature some distance away at the time the shot was fired which killed Officer Haddock; (b) that if permitted to testify, he would establish he was not a party to the plans to effect the officer’s death and he would categorically deny he killed Officer Haddock, and assert he did not desire it or effect it either directly or indirectly; (c) that he would have explained to the best of his knowledge and ability the guns in his car, which explanation would have been in his favor with the jury; (d) that it was coincidental as to how his conjoint defendants and himself got together; (e) that if he were permitted by coram nobis, he would account for his acts and his involvement in the crime, and among the things he would deny would be he told Mr. Hicks he only used one shell. (It should be borne in mind that the original record shows he borrowed the shot gun which killed Haddock together with four shells loaded with No. 4 shot from a Mr. Hicks, as he explained, to go duck hunting, and that at 2:00 a. m., the night of the killing, or shortly thereafter, he returned the gun and three shells at which time the foregoing statement was allegedly made. He does not assert he did go duck hunting.) In his petition he says he cannot account for the fourth shell; (f) that Hiram Robinson, a conjoint defendant, had told him, “I killed Haddock;” (g) that his lips being sealed to the truth by his attorneys at the trial caused him to be convicted; (In this connection, he does not allege fraud, coercion, intimidation, or duress. If anything, he alleges mistake of judgment.) (h) that four jurors named in his petition would testify, if permitted to do so, that if the defendant had testified, it might have changed the result of the trial; (i) that there is a witness, not named, who could establish the moving cause of Haddock’s death and his testimony will not remotely connect the defendant with the crime or cause therefor; (j) that it was asserted he had stated he would get Haddock, which he would deny if he were given another opportunity; (k) that he did tell untruths to Sheriff Barker about where the gun would be found before he took the Sheriff to Mr. Hicks’ home where the gun had been returned the night of the killing; (1) that he and Robinson had been together most of the afternoon and that also Freddie Richardson was with him and will confirm the petitioner’s allegations in this regard; (m) that he had spoken to Mack White about going duck hunting and White will corroborate him in this regard; and (n) that he can explain how he, Robinson, and Sargent, the other conjoint defendant, came to be in the car shortly before the killing.

To the foregoing petition the Attorney General has interposed a motion to dismiss to the effect the allegations contained therein are insufficient to state a cause for relief by writ of error coram nobis.

Some of the matters alleged in the petition might have been reached by the petitioner on the motion for new trial as newly discovered evidence. 22 O.S. 1951 § 952. In this connection it was held in State ex rel. Burford v. Sullivan, 86 Okl.Cr. 364, 193 P.2d 594, 596:

“The remedy by writ of error coram nobis is supplanted and excluded by statute in all cases where the statutes afford a remedy by motion for new trial.”

Relief by motion for new trial by reason of newly discovered evidence was lost by waiver and coram nobis is not a substitute therefor. Kennamer v. State, 59 Okl.Cr. 146, 57 P.2d 646. The same is true of the petitioner’s right to testify at the trial. The petitioner is now estopped by his failure to assert the right in the trial court he now seeks to assert. It has been repeatedly held:

“Functions of writ of error coram nobis are limited to an error of fact for which statute provides no other remedy, which fact does not appear of record or is unknown to court when judgment is pronounced, and which, if known, would have prevented the judgment and also which is unknown and could not have been known to the party by exercise of reasonable diligence in time to have been otherwise presented to court, or which the party is prevented from presenting by duress, fear or other sufficient cause. 20 O.S.1951 §§ 40, 41; 22 O.S.1951 § 9.

“Writ of error coram nobis will reach only matters not cognizable on motion for new trial, or in arrest of judgment, or on appeal.”

Hendricks v. State, Okl.Cr., 297 P.2d 576, 577; Hurt v. State, supra. This petition does not contain allegations that he was prevented by duress, force or other sufficient cause from making said facts known to the trial court. In re Eckert, Okl.Cr., 295 P.2d 814. The foregoing allegations of fact do not bring the casé within the last recited rules. It is apparent that the defendant at the time of trial, on the advice of able counsel, had his election under the law as to whether he would stand mute or whether he would take the stand and disclose what he now asserts to be the facts. If the practice herein petitioned for were to be approved, there would never be any end to litigation in criminal cases and defendants could trifle with the courts. To uphold the petition would open up an interminable area of speculative practice and degenerate • the sacred scales of justice into a device little short of the tawdry equipment of a dice game. It would reduce the law of election of procedure to a game of chance. Fortunately, the decisions in the law are not so fabricated. Once a deliberate and reasoned election not to testify has been made and pursued to finality in the trial of a criminal case, affirmed on appeal, that ends the matter. 28 C.J.S. Election of Remedies § 29, p. 1102. An election to pursue one of two inconsistent remedies operates as an abandonment or waiver of the other. We know of no reason why this principle should not apply in this situation. In such case as the one at bar, the defendant may not at a later time reopen the case and have another jury speculate on his truthfulness, which he was unwilling to have weighed in the first instance. In any proceeding, litigants should not be permitted to play fast and loose with either the law or the courts. This petitioner seeks so to do.

Since all the essential facts related in the petition herein were available to the petitioner at the trial, or with reasonable diligence could have been available, such situation does not present a case for relief by writ of error coram nobis. The record of the trial of the case itself shows that due process was accorded the petitioner. The state’s motion to dismiss • is sustained and this petition accordingly dismissed, and permission to seek relief in the trial court by writ of error coram nobis is denied. Hendricks v. State, supra; Hurt v. State, supra.

POWELL and NIX, JJ., concur.