(dissenting).
This appeal presents great difficulties.
In the first place, the threats which appellant avers impelled his plea of guilt were not those to which he refers when he says in his petition “ * * * these (threats) didn’t bother me.”. This incident should therefore be given no consideration.
In the second place, the petition for the writ .of coram nobis'was never considered on the merits of the factual allegations, but was dismissed by the trial court as beyond, its jurisdiction. Res judicata, cannot be premised upon that proceeding. Therefore this incident cannot be taken as disposing of the case.
The majority opinion seems to assume that a constitutional' right has been violated or that an existing constitutional right of appellant need not be observed because appellant has waived either the violation or the .observation of such right.
*589It is the very gist of the recent opinion in Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830, that if a relevant and material issue of fact is presented in the proceedings the court cannot resolve such issue without a hearing. Appellant states, in effect, that his plea was not a truthful or voluntary one but instead was false and was induced by mortal fear engendered by threats of government peace officers. The return denies the threats and it would seem that an issue of fact is here clearly indicated. The issue would be, were the threats made, — were they reasonably likely to cause mortal fear, — did they do so ?
If I understand it, the majority opinion holds that since the trial court gave the prisoner at the bar (appellant) every consideration and accorded him every constitutional privilege (and this to the credit of the veteran jurist Hon. Edward E. Cushman) , that it was his bounden duty to plead the truth. That if he did not then do so he has waived his right ever after to raise a question as to its verity. If this premise is right then there was no relevant and material issue for the trial court to solve.
I do not deny that there is force in this premise, but I find no authoritative statement in its support. On the other hand, I find courts reluctant to construe acts of one accused of crime as constituting waiver of constitutional rights. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461.
I also find the Supreme Court saying in Holiday v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015, 1017, 85 L.Ed. 1392: “A petition for habeas corpus ought not to be scrutinized with technical nicety.” — and in Bowen v. Johnston, 306 U.S. 19, 26, 59 S.Ct. 442, 446, 83 L.Ed. 455: “* * * It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired.”
The alleged threats are monstrous and tax credulity to- the breaking point, especially since made by one who confesses to the abhorrent crime of kidnapping and whose right asserted here in nowise lessens the diabolical character of the act. But these black circumstances must have no influence here for our jurisprudence recognizes no outlawry, and as is well said in Walker v. Johnston, supra [61 S.Ct. 579, 85 L.Ed. 830] : “The Government’s contention that his [petitioner’s] allegations are improbable and unbelievable cannot serve to deny-him an opportunity to support, them by evidence.”
I am unwilling to take the course that is so uncertain and which tends toward the limitation of the usé of the great writ of freedom.