205 N.W. 522 | Iowa | 1925
The plaintiff, A.J. Boyd, was indicted in 1921 for the crime of receiving stolen property. The trial resulted in a conviction, which was appealed from and reversed. State v. Boyd,
The respondent herein denied the application of plaintiff for said writ, and the same is now before us on certiorari. It is the contention of the respondent herein, first, that the common-law writ coram nobis is not available under Iowa practice; second, that, if available, the facts herein do not warrant the issuance of said writ.
The writ coram nobis, sometimes called coram vobis, was a common-law writ which originated in the practice in England prior to the days when the parliamentary enactment authorized the writ of error. The purpose of such writ was to correct or vacate a judgment in the court in which it was rendered, on account of matters not appearing on the face of the record. 2 Ruling Case Law 305 states:
"The distinction between an ordinary writ of error and a writ of error coram nobis is that the former is brought for a *689 supposed error in law apparent on the record, and takes the case to a higher tribunal, where the question is to be decided and the judgment, sentence or decree is to be affirmed or reversed; while the latter is brought for an alleged error in fact not appearing on the record, and lies to the same court, in order that it may correct the error which it is presumed would not have been committed, had the fact in the first instance been brought to its notice."
It cannot be used for the purpose of correcting errors at law. 34 Corpus Juris 392, Section 602. It was limited to errors of fact not appearing on the face of the record, which fact was unknown to the court, and which, if known in season, would have prevented the rendition and entry of a judgment challenged. 34 Corpus Juris 393, Section 605, and cases therein cited.
After the English parliament passed the act authorizing writs of error in their court, this writ coram nobis fell into disuse, and has become entirely obsolete in their practice. It has been used very little in the United States, and in the three or four states where it has been recognized as a common-law writ, its use has been very limited. In the English practice, the distinction between the writs coram nobis and coram vobis depended upon the court in which the proceeding existed. If in the king's bench court, it was called coram nobis, and if in the common pleas court, coram vobis.
In our search we have found three states which recognize the writ because of its being provided for by statute in those states. Aside from this, in a labored search, we have been unable to find that it is being generally used in any other of the states of the Union.
We are met with a primary question as to whether, under any circumstances, the writ coram nobis is available under Iowa practice. This writ was available by Chapter 28 of the Territorial Laws of Iowa, 1843-44, the act being approved on February 15, 1844. A careful reading of this chapter leads to the conclusion that the enactment was not as broad as the English rule governing this writ. It appears that the legislature intended it to apply only in civil actions. This legislation became a part of the Code of 1851, appearing therein as Chapter 112. *690
While this statute was in effect, two civil cases were passed on by this court: one, Mears v. Garretson, 2 G. Greene 316; the other McKinney v. Western Stage Co.,
When the Revision of 1860 was adopted, this legislation was entirely omitted. It is settled law that, where statutes are revised, and some parts of the original are omitted, the parts omitted cannot be revived by construction, but are considered annulled. 36 Cyc. 1080, and cases therein cited. Hence it must follow that the omission of this chapter was, by implication, intended as a repeal thereof; but we need not rely upon a repeal by implication, for the reason that, in the Revision of 1860, Chapter 4, Section 31, we find the following provision:
"All public and general acts passed prior to the present session of the general assembly, and all public and special acts the subjects whereof are revised in this Code, or which are repugnant to the provisions thereof, are hereby repealed, subject to the limitations and with the exceptions herein expressed."
Certain limitations and exceptions are provided, none of which in any way affect the question involved. It is apparent, therefore, that, under our practice, from 1844 to 1860 the writcoram nobis was not only recognized, but specifically provided for by law.
It is held in Buck v. Spofford,
Chapter 652 of the Code of 1924 defines a new trial as follows:
"Section 13942. A new trial is a re-examination of the issue in the same court before another jury, after a verdict has been given."
Section 13944 enumerates the grounds of a motion for a new trial. The eighth ground thereof reads as follows:
"When from any other cause the defendant has not received a fair and impartial trial."
It is quite apparent, therefore, that the complaint on which this writ is sued out, if available at all, would be covered by the eighth ground above quoted. It is not available to the applicant herein, however, because Section 13943 provides that it must be made before judgment. No provision is made in the criminal code for filing a motion for new trial, or to vacate a judgment, after sentence and judgment have once been pronounced and entered of record. This shows that the legislature recognized and had in mind that there might be causes for the granting of a new trial, if in fact the defendant had not received a fair and impartial trial; but the legislature has limited the right of the defendant to raise such question, and by the aforesaid section has provided that he must make application before judgment. The legislature having so limited this matter, it does not seem to us that this court has power to override the act of the legislature and to hold, as we are urged by the applicant herein, that there is a right to have the judgment reviewed by reason of some matter which shows that he has not had a fair and impartial trial.
In the states of the Union which adopted the common-law practice, this writ still seems to survive. Adler v. State,
One of the last cases that have been called to our attention is the case of Alexander v. State,
"Counsel for the State do not, in their brief or argument, *692 controvert the right to a writ of error coram nobis in a proper case."
The case holds that the evidence was not sufficient to warrant the issuance of the writ.
The Mississippi court recognized the use of the writ, but they say, in Fugate v. State,
"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."
Then quoting from Sanders v. State,
"`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 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 verdicts 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."
In the case of Peak v. Shasted,
In several Tennessee cases the writ has been supported; but, as the statutes of that state specifically provide for the issuance of such writ, those decisions are of little aid to us.
In the Ohio Supreme Court, in 1834, a writ coram nobis resident was issued in a civil case, to review the judgment of the lower court. See Dows v. Harper, 6 Ohio 225, where it is said:
"If the necessity for a writ of error to the king's bench, in the state of things in England, was a good reason for the use of the writ there, the same reason exists in this state."
The New York court took this same view in DeWitt v. Post, 11 Johns. (N.Y.) 460; but the practice in each of these states, by reason of the adoption of codes later, seems to have become entirely obsolete.
In a later Ohio case, State v. Hayslip, 90 O. St. 199 (107 N.E. 335), the court said:
"We find that in Ohio the common-law writs and pleas are designated and defined by statute just as crimes are designated and defined by statute. The writs of coram nobis and coram vobis, which are invoked in behalf of the defendants in error, are no part of the criminal jurisprudence of the state of Ohio."
Following this line of logic, it is to be noted by an inspection of our Code that it is a complete criminal code in itself, making provision for various pleas, also for motions for new trial in arrest of judgment, and giving the defendant the right of appeal. Under our practice, when a criminal case is appealed, the duty of the Supreme Court is to review the errors, if any, in the record. In effect, under the Iowa practice the appeal in a criminal case has the same force and effect as does a writ of error in the courts where the same is used. It follows that, the legislature having provided a complete criminal code, and not having provided for any writ of error coram nobis, such writ is not available, under the practice in this state.
In Coppock v. Reed,
"Certainly this may not be done through the writ of error coramnobis; for that does not lie, even if available in this state, to correct an issue of fact which has been adjudicated, nor for alleged false testimony at the trial, * * * nor for newly discovered evidence [citing authority]."
However, we are not disposed to dig into the musty archives of the past to resurrect and revivify ancient and worn-out writs that have long since been discarded and forgotten.
Aside from all this, it is settled by the decisions both in England and in this country that, after a judgment of sentence has been passed, if the defendant appeals his case and the decision is affirmed by the appellate court, by such appeal the defendant waived his right to a writ of error coram nobis.Partlow v. State (Ind.), 141 N.E. 513; Latham v. Hodges,
Again, it is fundamental that the alleged fact which it is claimed the lower court did not have before it at the time it pronounced judgment must be such as would have prevented the court from entering the judgment that it did; and the writ will not lie where the complainant knew the fact complained of at the time of or before the trial, or by the exercise of reasonable diligence might have known it, or is otherwise guilty of negligence in the matter. 34 Corpus Juris 393, Section 605. The sole contention here is that the prosecuting witness was insane at the time he gave his evidence, which fact was unknown to the court or to the defendant or to his attorney, and is the basis of this application. Assuming the fact to be true that such prosecuting witness was insane, that would not have been a matter of defense for the defendant to have asserted on the trial. At most, the only thing about which the defendant complains is that, had he known of the insanity of the prosecuting witness, he could have had the fact called to the attention of the jury, and could have questioned the competency of the prosecuting witness. This is wholly an evidentiary matter, however, and to our minds is not such fact as is contemplated and required as a basis for such a writ if it were permissible to issue it. Assuming *695 that, in the trial of a case of this character, a witness who was wholly incompetent to testify was used by the State, the only right lost by the defendant by reason of want of knowledge of such incompetency was the right to object to the testimony and have it ruled out by the court. This is wholly a matter of procedure and trial of the cause. We do not deem it such a "fact" as could be used as a basis for any such writ. We are, therefore, of the opinion that the action of the lower court was correct in refusing to grant the prayer of the applicant's petition. —Affirmed.
FAVILLE, C.J., and EVANS, STEVENS, De GRAFF, and MORLING, JJ., concur.
VERMILION, J., took no part.