72 N.E.2d 827 | Ill. | 1947
February 24, 1934, a jury in the criminal court of Cook county found Roger Touhy guilty of the crime of kidnapping John Factor for ransom and fixed his punishment at ninety-nine years' imprisonment in the penitentiary. Judgment was rendered on the verdict. Touhy prosecuted a writ of error from this court to the criminal court. On June 14, 1935, the judgment was affirmed and, on October 2, 1935, a petition for rehearing was denied. (People
v. Touhy,
We deem unnecessary a narration of all the detailed facts alleged in the petition. Our opinion in People v. Touhy,
The gist of the principal contentions made by Touhy's petition is that his conviction rests upon Factor's false identification of him as one of the perpetrators of the kidnapping and the supporting testimony of Costner, also charged to be false, and upon the asserted arbitrary action of the trial judge in refusing to allow a reasonable time for Touhy's counsel to prepare for the argument of his motion for a new trial. As stated in Touhy's brief, "This confession of perjury by the principal witness [Factor] is the central point of the case. The newly discovered evidence is `of such character as completely to undermine the entire case on which the prosecution was based'."
An examination of the petition for habeas corpus filed in this court, more than eight years before instituting the present action, discloses that Touhy alleged Factor's testimony in the trial upon the indictment for kidnapping was false, and, also, that Costner committed perjury upon the trial. He averred that knowledge of the facts alleged first came to him immediately preceding February 14, 1938. The petition for habeas corpus was supported by eleven affidavits. The present petition for a writ of error coram nobis is not supported by a single affidavit.
As recounted, the People filed a plea in bar placing reliance upon section 72 of the Civil Practice Act and, also, a demurrer averring that the allegations of the petition, to the effect that Touhy's conviction resulted from the contrivances of the prosecuting witness, John Factor, and the false testimony of Factor and Costner are not matters or grounds for relief in the present action; that allegations on rulings with respect to the evidence, the time for considering the motion for a new trial and that new evidence has been discovered are not matters relievable by an action in the nature of a writ of error coram nobis and, further, that allegations as to violations of Touhy's rights in the criminal trial are not within the purview of the matter for which the writ lies. *23
Although petitioner captions his pleading a "Petition for Writ of Error Coram Nobis," we treat it as a motion in the nature of a writ of error coram nobis. Eighty years ago, in 1867, this court, in McKindley v. Buck,
Touhy contends that the five years' limitation period in section 72 of the Civil Practice Act is inapplicable to criminal cases. This contention and the supporting argument are based upon the fallacious premise that proceedings upon motions in the nature of a writ of error coram nobis are criminal proceedings when the motions are sequels to judgments rendered in criminal cases. Touhy does not make the contention that section 72 of the Civil Practice Act is unconstitutional but urges that an interpretation applying the statute to petitions or motions in the nature of a writ of error coram nobis in criminal cases would render the section unconstitutional. The precise point advanced is that if section 72 applies to criminal proceedings, it would violate section 13 of article IV of our constitution, providing that no act shall embrace more than one subject and that it shall be expressed in the title.
The purpose of the writ of error coram nobis at common law, and of the motion substituted for it by section 72, is to bring before the court rendering the judgment matters of fact not appearing of record, which, if known at the time the judgment was rendered, would have prevented its rendition. (Linehan v.Travelers Ins. Co.
A motion in the nature of a writ of error coram nobis is an appropriate remedy in criminal cases, as well as civil. The statute contemplates the filing of a motion or petition in the nature of a writ of error coram nobis in the first instance in the court rendering the judgment assailed. The motion or petition is the filing of a new action and is civil in its nature. (People
v. Dabbs,
The common law writ of error coram nobis and the motion substituted for the old writ by section 72 of the Civil Practice Act are essentially civil in character. This being so, the contention that the present cause is a criminal proceeding cannot stand, and the argument that section 72 is inapplicable to the motion when employed in the criminal court of Cook county must, likewise, fall. We adhere to our decision in People v. Rave,
The disposition of the demurrer to the petition was likewise correct. To the end of avoiding any misunderstanding of this opinion, we are impelled to make additional observations. The petition is not supported by affidavits of either the lawyer to whom John Factor is alleged to have stated that he committed perjury upon the trial in the kidnapping case, or of Factor himself. The allegations, so far as the alleged false testimony of Factor is concerned, are hearsay statements of the highest degree. We do not regard the allegations in the petition as having been taken as true, even for the purpose of disposing of the demurrer. The rule that facts stated in a pleading will be taken as true on a motion to strike, does not extend to conclusions drawn by the pleader. (Kurtzon v. Kurtzon,
Irrespective of whether the allegations of the petition be taken as true for the sole purpose of disposing of the demurrer, the contention is not well taken that the common-law writ of error coram nobis, or its statutory substitute in this State, is available as a remedy for newly discovered evidence or for alleged perjured testimony. We have this day, in People v.Gleitsman,
This court, in 1934, thoroughly reviewed the record upon the writ of error sued out of this court to the criminal court of Cook county seeking a reversal of the judgment of conviction on the charge of kidnapping John Factor. (People v. Touhy,
The judgment of the criminal court of Cook county is right, and it is affirmed.
Judgment affirmed. *29