The majority opinion is so divergent from my conception of the law that I feel impelled to dissent.
As far back as 1914, this court refused to apply Sections 344 and 518 of the Civil Code of Practice to criminal cases. As expressed in Wellington v. Com., 159 Ky. 462, 167 S.W. 427,428, "It is contemplated by the law that criminal cases are to be speedily disposed of, and therefore the procedure prescribed by the Criminal Code [referring to Sections 271-274 previously mentioned in the opinion] for obtaining a now trial is the only one known to the law." Greer v. Com., 165 Ky. 715,178 S.W. 1027 (delivered the next year) followed the Wellington opinion, quoted copiously therefrom and closed by saying that the pardoning power vested in the Governor was created to meet an emergency in criminal cases where subsequent events justified its exercise. The sentence above quoted from the Wellington opinion conclusively shows that it abolished the writ of coram nobis in this state, since under Section 233 of our Constitution only such common law exists in Kentucky as was in force in Virginia on June 1, 1792, which has not been modified by our Constitution, Legislature or judicial decisions, or is not repugnant to the public policy of Kentucky. Com. v. Donoghue, 250 Ky. 343, 63 S.W.2d 3, *Page 822 89 A.L.R. 819; Wilson v. Com., 290 Ky. 223, 160 S.W.2d 649.
The soundness of the Wellington and Greer opinions was never challenged until 1937 when the writ of coram nobis made its first appearance in our criminal jurisprudence in Jones v. Com., 269 Ky. 779, 108 S.W.2d 816. The Jones case did not overrule those opinions, but cited them with approval as holding that Sections 344 and 518 of the Civil Code of Practice had no application to criminal cases. However, it erroneously assumed that the writ had not been abolished by Sections 271-274, Criminal Code of Practice, as construed in the Wellington and Greer opinions. The opinion in Robertson v. Com., 279 Ky. 762, 132 S.W.2d 69, fell into the same mistake as did the Jones opinion.
Our decisions are in such confusion on the writ of coram nobis that no one can tell where we stand. In writing on the subject we have wobbled and hobbled like a lost raft at sea. But we are not alone, as other courts likewise seem to be without mast and compass when sailing this sea. Reference to the texts and reported decisions of foreign jurisdictions will show that other courts are in the same state of confusion. The writ of coram nobis appears to be the wild ass of the law which the courts cannot control. It was hoary with age and even obsolete in England before the time of Blackstone, and courts who attempt to deal with it "become lost in the mist and fog of the ancient common law." Mitchell v. State, 179 Miss. 814,176 So. 743, 747, 121 A.L.R. 258.
In Jones v. Com., 269 Ky. 779, 108 S.W.2d 816, it was said the writ did not lie after the affirmance of a judgment of conviction, nor was it available because of perjured or newly discovered evidence after trial; that its purpose was to obtain a new trial because of conditions for which the applicant was not responsible and where the record appeared regular, but where subsequent facts rendered the original trial equivalent to none at all; and to enforce the judgment was analogous to taking life without due process of law. That opinion was based on right respectable authority and was followed in 1939 by Robertson v. Com., 279 Ky. 762, 132 S.W.2d 69. The opinion in Sharpe v. Com., 284 Ky. 88, 143 S.W. 857, decided in 1940, pointed out that it was the intention of the framers of the Criminal Code to terminate criminal trials by an affirmance in this court, because the *Page 823 Criminal Code provided no further procedure, hence the writ did not lie on the ground of newly discovered evidence after the conviction had been affirmed. This Sharpe opinion was on the road back to Wellington v. Com., 159 Ky. 462, 167 S.W. 427, when along came Smith v. Buchanan, 291 Ky. 44,163 S.W.2d 5, decided in 1942, and overruled so much of the Jones and Robertson opinions as held that the writ did not lie after judgment of conviction had been affirmed; but it did not mention the Sharpe opinion holding that the writ did not lie for newly discovered evidence after the conviction had been affirmed. However, there was another suit by Sharpe seeking a writ of habeas corpus. The judgment denying habeas corpus was affirmed in 292 Ky. 86, 165 S.W.2d 993, in which it was intimated that the first Sharpe opinion was erroneous in denying the application of coram nobis on newly discovered evidence after the judgment of conviction was affirmed. The present opinion of the Anderson case overrules the first Sharpe case.
The court in the majority opinion says it is "deeply sensible of the need for ending * * * criminal prosecutions, as early as it is consistent with right," yet it not only opens the door to indefinite delay, but actually invites it. Should the trial court upon hearing the petitioner's application overrule same, certainly he may prosecute an appeal to this court. Should the judgment be affirmed, he is entitled to file a petition for rehearing. If that be overruled, then there is nothing to prevent him within a few days before his execution from filing a second petition for a writ of coram nobis upon the ground of newly discovered evidence as to his whereabouts on the night of the murder, and attach thereto the deposition of a witness who has never testified previously, showing Anderson was not in Fayette County on the night of the murder. The trial court under the majority opinion must hear that application because of the "extreme emergency" and determine whether or not the petitioner "was unknowingly deprived of a defense which would have probably disproved his guilt and prevented his conviction." If it refuses to hear this second application for the writ, then the petitioner may appeal and this court under the opinion in the instant case would be compelled to reverse the judgment. Then would follow another hearing and subsequent appeal as above outlined. This procedure could be repeated almost indefinitely, because under the majority opinion failure to grant a hearing on *Page 824 the application would deprive petitioner of due process of law under the Federal Constitution, Amend. 14, and the Federal Courts would release him upon a writ of habeas corpus.
Nor can I agree with the majority opinion that Penney's testimony is "of such a conclusive character that the verdict most probably would not have been rendered and there is a strong probability of a miscarriage of justice unless the process be granted." While the case should not now be considered on its merits for the purpose of this appeal, and I am not so doing, yet I must consider the original record as disclosed by the opinion concurred in by the whole Court. The pistol from which the bullet was fired was shown to belong to Anderson. Mrs. Gabbard identified him as the man who came to her place near Lexington, looking for Baxter on the fatal night. Givens, the drug clerk, identified Anderson as the man to whom he sold a flashlight around midnight on the 27th of September in Lexington. Frank Lederson testified that he saw Penny and Anderson in a Buick car which the latter was driving going east on Market Street in Louisville around 7:30 P. M. on the 27th. It is most significant that Anderson did not take the stand and deny any of this testimony, and my opinion is that it alone would have convicted him without the testimony of Penney. Then there is the very damaging evidence of the notes passed between Anderson and Penney referred to in the original opinion, and there is no explanation of who Hoffman was and why Anderson would wire him $15 when he was in Mississippi with Penney in Anderson's car.
Penney admits he was a "hi-jacket" of liquor, which translated into polite parlance means that he was an armed robber frequenting the highways and preying upon liquor shipments. It would appear that murdering women was just a sideline with him. When caught he was weak enough to incriminate his friend Anderson. After they were convicted Anderson filed this petition for a writ of coram nobis based upon Penny's repudiation of his testimony only to the extent that it was Buford Stewart, now dead, and not Anderson, who was with him. Everything he said was true when you substitute Stewart for Anderson, so he says. To my mind this proceeding is not unlike the ancient case of Everett v. Williams, 9 L. Q. B. 197, where a bill was filed by two highwaymen *Page 825 to settle a partnership in outlawry, resulting in a judgment condemning the bill for scandal and inflicting the death penalty upon both litigants.
How this court can take seriously this petition is beyond my understanding. Anderson did not take the stand and deny a word of Penney's testimony, nor the other evidence referred to in the second preceding paragraph which was just as damaging as that of Penney. Nor can I see how a federal tribunal can say that Anderson has been deprived of his day in court after he had an orderly and fair trial and his case subsequently fully considered on appeal as is shown by the original opinion. His present petition is but a sham.
As was written in Mitchell v. State, 179 Miss. 814,176 So. 743, 744, 121 A.L.R. 258:
"[Writs of coram nobis] have induced a course of practice in cases of death sentences which, under the experiences of the last few years, has become intolerable, and has produced such mischief as to bring the courts and the law into a measure of disrespect, in the hearing of numerous applications for the stay of executions and in the too frequent granting thereof."
I think we should return to the rule enunciated in Wellington v. Com., 159 Ky. 462, 167 S.W. 427, that the procedure prescribed by the Criminal Code of Practice for obtaining a new trial is the only one known to Kentucky criminal procedure. If this does not suffice, then let the Legislature remedy the situation; otherwise there are likely to be petitions for the writ of coram nobis followed by appeals in most instances where there is an affirmance of a death, or long term, penalty by this court. If there was ever a case where a hearing for the writ should be granted, I am confident it is not this one. I feel that the enforcement of the criminal law should not be brought into disrepute by granting Anderson a hearing for a writ of coram nobis.
We got along fairly well in Kentucky without this writ from 1792 until 1937 — 145 years — with no injustice to criminals and with federal jurisdiction being invoked by them in but few instances. But if continued in effect, the writ promises to make the judicial road rought in the future for everybody except the criminal.
Judge Cammack concurs in this dissent. *Page 826