ON PETITION FOR WRIT OF ERROR CORAM NOBIS. This is an original petition in this court for a writ of errorcoram nobis.
The petitioner was charged and convicted of murder, and upon appeal to this court the judgment was affirmed. Stephenson v.State, ante. 141.
Jurisdiction to grant writs of error coram nobis lies in the court that rendered the judgment. Partlow v. State (1922), 25. 191 Ind. 657, 124 N.E. 483. It has been said that after appeal and decision of a cause by this court, the judgment is the judgment of this court, but we cannot agree with this proposition. A common law appeal brought the whole case up 26. to the appellate tribunal for re-examination on the merits as to both law and facts, and for decision as though no decree had ever been rendered. Upon decision of the case by the Appellate Court upon such an appeal, the judgment, of course, became the judgment of the Appellate Court.
A writ of error at common law is a method of bringing cases to an Appellate Court for review of supposed errors of law committed by the trial court. The case is not open for re-examination upon the whole merits, but every controverted question of fact is excluded from consideration, and the Appellate Court is confined to reviewing the rulings of the inferior court upon questions of law.
The statutory appeal to this court is in the nature of a common law writ of error, and brings the record *Page 195 to this court for a review of assigned errors of law committed at the trial and apparent upon the record. We are not concerned with controverted questions of fact. If the judgment is affirmed it stands and is still the judgment of the lower court. If it is modified or reversed, the mandate of this court directs the lower court to modify its judgment or set it aside and grant a new trial, in which case another judgment results, but the final judgment is the judgment of the trial court and not of this court.
The effect of the decision of an appealed case upon the judgment below is the same in criminal and civil cases, and a decision by the Appellant Court has the same effect as a decision by this court. It is the law that a court of general jurisdiction may entertain an action to enjoin the operation of a judgment at law after an appeal and affirmance of the judgment by the Appellate Court. Hitt v. Carr (1922), 77 Ind. App. 488, 130 N.E. 1.
If it were true that after affirmance the judgment becomes the judgment of the Appellate Court, it is clear that a court of inferior jurisdiction cannot enjoin its operation.
Because any change or modification of the record pending an appeal would interfere with the appellate jurisdiction of this court, the jurisdiction of the trial court to act in the 27, 28. case is suspended pending the appeal, but upon leave being granted by this court it may entertain such a petition pending the appeal, and if the petition is denied, the record of the proceeding may be certified to this court as part of the appeal, and if the petition is granted and the facts certified to this court, the appeal will be dismissed and the judgment may be then vacated and a new trial had.
"The writ of error coram nobis is not intended to authorize any court to review and revise its opinions; *Page 196 but only to enable it to recall some 29. adjudication, made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which, without any fault or negligence of the party, was not presented to the court." Sanders v. State 1882), 85 Ind. 318, 44 Am. Rep. 29.
The evidence by which the existing fact can be proved must be set out in the petition, and the petition must allege facts showing that by the exercise of diligence the petitioner 30, 31. would not have been able, and was not able, to produce the facts relied upon at the trial or before judgment, by motion for a new trial or otherwise. Insofar as applicable, the sufficiency of the petition will be tested by the rules applicable to motions for a new trial because of newly-discovered evidence.
In Wheeler v. State (1902), 158 Ind. 687, 63 N.E. 975, it is said that a writ will not be granted except where it clearly appears that the petitioner had a valid defense in the facts of the case.
The state may dispute the facts alleged, and the issue of 32. fact thus arising is to be decided by the court without a jury.
The writ will reach only matters not cognizable on motion for a new trial, or in arrest of judgment, or on appeal. It represents that justice has been circumvented, and that in effect a 33. fraud has been perpetrated upon the court that entered the judgment. The only relief that can be granted is the setting aside of the judgment and the granting of a new trial.
Insofar as they are not in agreement with this opinion, the cases of Partlow v. State, supra; Partlow v. State (1924),194 Ind. 172, 141 N.E. 513, 30 A.L.R. 1414; Partlow v. State (1924), 195 Ind. 164, *Page 197 144 N.E. 661; and Davis v. State (1928), 200 Ind. 88, 161 N.E. 375, are disapproved.
Article 7, Section 4, of the Constitution provides that this court "shall also have such original jurisdiction as the general assembly may confer." No jurisdiction to entertain an 34. original petition for a writ of error coram nobis has been conferred by statute, and there is none. The court in which the judgment was originally entered has no jurisdiction to entertain such a petition pending disposition of an appeal to this court, but it has jurisdiction to do so after remittitur.
For the reasons given the petition must be dismissed, but we have, nevertheless, considered its merits for the guidance of petitioner and the trial court in case that a petition should be filed later in the court below. It is most voluminous, and is largely given over to the recital of a weird tale of intrigue by which it is sought to show that an army of petitioner's associates, certain politicians and high officials of this state conspired together to bring about the death or imprisonment of the petitioner. All of these facts are irrelevant and collateral to the issue.
It is alleged that the petitioner was prevented from testifying at the trial through fear of being shot on the witness stand, and that if he had taken the stand in his own defense he would have testified that another person, one of the conspirators, had committed the murder with which he was charged. The facts about which he would have testified to establish that same other person was responsible are not set out, nor are the facts to which any other witness or witnesses would testify set out, nor the names of any such witnesses. It is alleged that he will produce this undescribed evidence "in open court" upon another trial.
The allegations are not sufficient. The facts which would have prevented the rendition of the judgment, *Page 198 had they been known at the trial, must be set out so that they may be scrutinized by the court hearing the petition. The record of the trial is before us and we take cognizance of it. There is overwhelming evidence that the petitioner, and not someone else, was with Miss Oberholtzer and was responsible for the acts which it was charged caused her death. The defense made at the trial was entirely inconsistent with the theory of this petition. It is not alleged in the petition that any of the witnesses who testified at the trial would repudiate their testimony connecting the petitioner with the person charged to have been murdered at the time the acts were committed which were charged to have caused her death, and which the jury evidently believed did cause her death. It follows that any evidence which might be produced tending to establish that another, and not the petitioner, was responsible for the death, would merely conflict with other substantial and convincing evidence.
The whole showing made, including the irrelevant and immaterial matter, is not even mildly persuasive that there was a valid defense upon the theory suggested.
It is also asserted that petitioner's enemies caused hostile crowds to fill the court room during the trial and stir up popular prejudice and hostility against him, and that certain of his enemies had arranged that he would be shot if he took the witness stand. The testimony by which he hopes to support the allegation that he would be shot if he took the witness stand, insofar as it is disclosed, consists of his affidavit and the affidavits of several others that they believed he would be shot. But, if, in fact, the belief existed in his mind at the time of the trial and it accounted for his not going upon the witness stand, definite evidence of that fact could have been produced.
Popular prejudice and hostility, excitement and indignation, *Page 199 are the natural result of shocking crimes. It cannot be excepted that a community will remain calm when such offenses have been committed and the perpetrators are being tried. But even where they exist and are given audible expression, there is not always sufficient ground for a belief on the part of the accused that he dare not demand the rights secured to him by law. Wheeler v.State, supra.
It is apparent from the record that at no time was there an attempt by any one to interfere with the regular and orderly proceedings of the court.
It is alleged that because of fear and threats the petitioned signed the motion for a new trial without reading it, but it is not alleged that his attorneys failed to set out in the motion every available ground for a new trial, nor that he had no opportunity to acquaint his attorneys with any fact which he desired to have set up as a cause for a new trial. Petitioner's rights were asserted vigorously and fearlessly by resourceful and intelligent counsel, who, no doubt, were cognizant of everything that took place, and of petitioner's reasons for not testifying in his own defense. The record is interspersed with objections, arguments and debates of petitioner's counsel, from all of which it appears that the defense was not upon the ground that some one else, and not the defendant, was responsible for the acts charged. Two hundred and ninety-four causes are assigned in the motion for a new trial, and it is indicated that petitioner's counsel sought to present every question that came to their notice and that they believed available.
The petition is dismissed.