A writ of error coram nobis lies to the court in which the case was tried to correct an error of fact that does not appear of record. It does not lie to correct an error of law. 2 Ruling Case Law, 305. Nor does such a writ issue as a matter of right but as a matter of sound judicial discretion. In.re Ernst, 179 Wis. 646, 192 N. W. 65. And it has been held that the decision of the trial- court in refusing a writ'is not reviewable. Tyler v. Morris, 20 N. C. 487. But such a rule does not obtain in our state. We review discretionary orders and reverse if there has been an abuse of judicial discretion.
We come, therefore, to the question, Did the trial court abuse his discretion in refusing to grant the writ? Plaintiff in error claimed by affidavit that he was led to plead guilty through the fact that he did not understand the English language and was told by the police officers that he should plead guilty. In addition to the plea of guilty his daughter also gave testimony to the effect that plaintiff in error had had sexual intercourse with her a number of times. Now by affidavit she says she testified falsely on the trial. In opposition to these affidavits there are affidavits and sworn statements from the police officers and the inter
Upon such a showing we cannot say that the court abused its discretion in refusing to grant the writ. On the contrary it exercised a sound judicial discretion. Under our system of criminal procedure permitting a defendant to move for a new trial to test the correctness of the sentence by writ of error or by writ of habeas corpus, the granting of a writ of coram nobis should be exercised with, the utmost caution and care by the trial court, and it should be granted only in cases where it quite clearly appears that an error of fact existed before judgment but for which error the judgment would not have been entered.
It appears in the present case that this petition was not heard by the judge who tried the case originally though he is still the municipal judge. Wherever possible, the judge who heard the case should pass upon the allowance of such a writ, because a refusal may in part be based upon his knowledge of the facts that occurred upon the trial. It is a petition addressed to his discretion, claiming that an error of fact intervened before judgment. He should be satisfied that there is at least reasonable grounds for believing that the petition is true. In a case like this where it is claimed that the accused did not know the charge against him or understand the plea he made, none perhaps is better qualified to pass upon the truth of such a claim than the Judge who received the plea.
It is claimed by plaintiff in error that some of the statements made by the police officers are not under oath because
It is claimed that a jury should pass upon the question as to whether a writ should issue. There is no,authority for such a claim. Neither is it founded upon reason. The court must pass upon the question of the issuance of the writ. As before stated, it is not a writ of right but one to be issued only in the discretion of the court. The court may dispose of the question of the issuance of the writ upon affidavits, sworn statements, or upon testimony taken before it, or upon any combination thereof. The writ having been granted, the issues then presented are usually tried before a jury. State v. Calhoun, 50 Kan. 523, 32 Pac. 38, 18 L. R. A. 838 and note.
The writ of coram nobis does not reach a question of perjury by a witness on a trial. The direct or implied finding by the jury or court when the case is tried that the testimony of such witness was true, is conclusive upon the hearing of. a petition for a writ of coram nobis. Were it otherwise, since no statutes of limitation, except perhaps such as equity may invoke, lie against the writ, no judgment would be safe against belated attacks thereon on the alleged ground of perjury.
By the Court. — Order affirmed.