ON PETITION FOR REHEARING AND WRIT OF CORAM NOBIS. The appellant filed a petition for rehearing and names eight reasons in support of said petition. The first seven reasons named in said petition have been fully discussed in the opinion and need not be further considered. The eighth reason assigned is one which was not assigned as error in a motion for a new trial and was not presented in the hearing of this case on appeal. This eighth cause is also set forth in a paper which the appellant has denominated a petition for writ of coram nobis. To that petition, appellee demurs, and says that the petition does not state facts sufficient to entitle the appellant to the writ of error coram nobis.
The writ coram nobis is based upon error of fact, as distinguished from the writ of error, which is based upon error of law. It always has been, and must now be, a part of 10-12. the proceedings in a case to which it refers, and must be filed in the court that rendered the judgment. Matters which were known at the time of the trial might have been submitted to the trial court and adjudicated, and cannot now be presented to *Page 304 this court by writ of error coram nobis. Partlow v. State (1922), 191 Ind. 657, 134 N.E. 483; 5 Ency. Pleading Practice p. 29.
In Sanders v. State (1882), 85 Ind. 318, 44 Am. Rep. 29, the court, at p. 329, said: "It is our opinion that the courts have the power to issue writs in the nature of the writ coramnobis, but that the writ cannot be so comprehensive as at common law, for remedies are given by our statute which did not exist at common law — the motion for a new trial and the right of appeal — and these very materially abridge the office and function of the old writ. These afford an accused ample opportunity to present for review questions of fact, arising upon or prior to the trial, as well as questions of law; while, at common law, the writ of error allowed him to present to the appellate court only questions of law. Under our system all matters of fact reviewable by appeal, or upon motion, must be presented by motion for new trial, and cannot be made the grounds of an application for the writ coram nobis. Within this rule must fall the defense of insanity as well as all other defenses existing at the time of the commission of the crime. Within this rule, too, must fall all cases of accident and surprise, of verdicts against evidence, of newly discovered evidence, and all like matters."
The petition for a writ coram nobis in the instant case proceeds upon the theory that appellant's coconspirator, Teague, was acquitted of the offense of conspiracy with this appellant. The record shows that he was not acquitted, but shows that this appellant's counsel, at the time of the trial, cross-examined Teague, who was a witness for the State, against this appellant, and such cross-examination shows, together with other matters appearing in the record, that the appellant knew that Teague was claiming immunity from prosecution for the offense for which this appellant was being tried. The appellant *Page 305 and Teague were charged with unlawfully, knowingly and feloniously uniting, combining, conspiring and confederating and agreeing with each other, with the object and purpose and with the unlawful and felonious intent to then and there control a still and distilling apparatus for the unlawful manufacture of intoxicating liquor in violation of the laws of the State of Indiana.
The record shows that this appellant procured a separate trial by filing an affidavit for a change of venue from the judge before whom the cause was pending. It shows that in the trial of the case against this appellant, his coconspirator in said action, Orville Teague, testified against this appellant, and it was upon said testimony, largely, if not wholly, that this appellant was convicted. All this was known by the appellant and his attorney at the time of the trial of this appellant.
At the time of his trial, §§ 2252, 2273 and 2755 Burns 1926 were in full force and effect. Under these statutes, appellant's coconspirator was entitled to receive from the State 13. immunity from prosecution on the conditions named in said statutes.
The record shows that said Teague did claim such immunity, and that it was granted, and, for that reason, he was not tried and convicted as coconspirator of this appellant.
In prosecutions for conspiracy, the conspiracy must be proved, but it is not essential to the conviction of one conspirator that another or other coconspirators shall be tried and 14. convicted. It is only where one is convicted and another or others are acquitted, resulting in a repugnancy upon the record, that the convicted conspirator may be discharged.Rex v. Cook (1826), 5 B. C. (Eng. K.B.) 538; King v.Plummer (1902), 2 K.B. (Eng.) 339, 4 B.R.C. 917; Rex v.Duguid (1906), 75 L.J.K.B. (Eng.) 470, 70 J.P. 294; *Page 306 Williams v. State (1907), 169 Ind. 384, 82 N.E. 790.
In Bradshaw v. Territory of Washington (1887), 3 Wn. Ter. Rep. 265, it was held that persons convicted of conspiracy may be sentenced, although no coconspirator has been convicted. It is only when all of the coconspirators have either been acquitted, or been discharged under circumstances tantamount to acquittal, that a conspirator cannot be convicted. Where a conspirator has not been indicted, in order to obtain his evidence for the prosecution, and the indictment of two other conspirators has been dismissed on the motion of the prosecuting officer, as permitted by the laws of Washington Territory, leaving the question of guilt or innocence undetermined, these conspirators have not been acquitted or discharged under such circumstances that the remaining conspirator may not be indicted or sentenced. In that case, the court said: "As regards the point that the plaintiff in error could not be sentenced until a coconspirator had been first convicted, the law is not as his counsel contends. For while it is true that the conviction of a single conspirator, or even his indictment, cannot be had, or if had will be invalidated in case every one else who is charged to have been conspirator with him has been or is acquitted, or under circumstances that amount to an acquittal discharged, yet we understand that it is also the law, on the other hand, that a person may be indicted for conspiracy and convicted; and if convicted, sentenced, although every person who is charged to have been coconspirator with him is unindicted, or has in some mode not inconsistent with guilt been released from liability under the indictment." See, also, Williams v. State, supra;Weber v. Commonwealth (1903), 24 Ky. Law Rep. 1726, 72 S.W. 30; Rutland v. Commonwealth (1914), 160 Ky. 77, 169 S.W. 584;People v. Richards (1885), 67 Cal. 412, 7 P. 828, 56 Am. Rep. 716. *Page 307
In the instant case, the prosecution against Teague was not terminated by an acquittal nor by any proceeding which would amount to an acquittal. These statutes granting immunity 15. to persons testifying do not acquit the witness of the offense, but the fact of his testifying bars a prosecution for such offense. In this case, the appellant admits that his conviction was brought about by the testimony of Teague, his coconspirator. If the testimony of Teague was true, and the jury have said by their verdict that they believed it, the coconspirator and this appellant were both guilty. There is no repugnancy in the record.
The appellant's petition for a writ coram nobis is not sufficient, and the writ is denied. The petition for a rehearing is overruled.