ON PETITION FOR WRIT OF ERROR CORAM NOBIS The appellant was tried and convicted for the murder of one Harry R. Miller and sentenced to be electrocuted. A motion for a new trial was overruled and he appealed from the judgment of conviction to this court which affirmed the judgment of the lower court on the 24th day of November, 1937. On the 22nd day of January, 1938, the appellant filed a petition for a rehearing in said cause which is now pending.
The appellant, before the petition for a rehearing has been passed upon, files a petition for permission of this court to file a petition for a writ of error coram nobis in the trial court, the Franklin Circuit Court, and for a further stay of execution.
It is alleged in the petition that in the motion for a new trial on the grounds of newly discovered evidence that the affidavits of Carolyn Broerman, William Kuhlman, and John Poholsky were filed after the court had ruled on the motion for a new trial; that said affidavits were not considered by the trial court, but that they were included as part of the record on appeal and considered by this court; that he now desires to file a petition for a writ of error coram nobis on the ground of newly discovered evidence and will file in support of said petition the affidavits of the above named parties.
Although the affidavits of the three parties named were not properly in the record on appeal, the court, as the opinion states, considered these affidavits and also counter affidavits filed by the State. Kuhlman and Poholsky are now dead, having been electrocuted for the murder of Miller. After they were sent to the Indiana State Prison they made statements indicating that their testimony given at the trial of Hicks, as to the part he took in the murder of Miller, was false. The affidavit of Carolyn Broerman, sister of William Kuhlman, contains statements *Page 306 made by him which supports, in a general way, the affidavit made by Kuhlman.
The writ of error coram nobis is in the nature of a motion for a new trial, and if granted, has the same effect. And 29-31. as said in the case of Stephenson v. State (1913), 205 Ind. 141, 196, 179 N.E. 633,
"In so far as applicable, the sufficiency of the petition will be tested by the rules applicable to motions for a new trial because of the newly discovered evidence."
A new trial will not be granted on newly discovered evidence which merely impeaches or contradicts evidence given at the trial. In the case of Morel v. State (1883), 89 Ind. 275, 279, it is said:
"It is well settled by the decisions of this court, `that a new trial will not be granted for the admission of newly-discovered evidence to contradict or impeach the testimony of a witness on a previous trial, either by showing that the reputation of such witness was bad for truth, or that his testimony on the former trial was false'." (our italics) Evans v. State (1879), 67 Ind. 68; Shirel v. Baxter (1880), 71 Ind. 352.
The only purpose of filing the affidavits in question would be for impeachment and to show that the testimony given by Kuhlman and Poholsky at the trial was false.
Under the authorities above cited this can not be done in a motion for a new trial, nor can it be done to sustain a petition for a writ of error coram nobis.
Petition of appellant denied. *Page 307