Denny, Emery B., Jr.

English

University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 27 | Number 2 Article 132-1-1949Criminal Procedure -- Method of RaisingConstitutional Issues -- Writ of Coram NobisEmery B. Denny Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationEmery B. Denny Jr., Criminal Procedure -- Method of Raising Constitutional Issues -- Writ of Coram Nobis, 27 N.C. L. Rev. 254 (1949).Available at: http://scholarship.law.unc.edu/nclr/vol27/iss2/13254 NORTH CAROLINA LAW REVIEW [Vol. 27to achieve it were to vest the power of choice in the plaintiff or toconfer power upon the courts to qualify his selection. '20  In the past,courts have considered this particular venue statute as conferring aspecial right because of its legislative history. Now Congress has mani-fested an intent to confer power upon the courts to qualify the selectionof forum. Therefore, applying the test laid down by the SupremeCourt, it is submitted that this is no longer an absolute right. Withoutthis idea of an absolute right, the obstacle to using injunctions in thefederal courts no longer exists; interference by injunction should beallowed if it is allowed by applying forum non conveniens. The rulethat a federal court may not enjoin the proceeding in a state court will,of course, remain unchanged.2 T As for the state courts, the Miles casepointed out that the right to sue in state courts under the Act is of thesame quality as such right in the federal courts. It would seem tofollow that if venue is subject to interference in the federal courts,it may also be interfered with in the state courts. The state courtswould again say that nothing in the FELA prevents their applyingforum non conveniens or granting injunctions.It is hoped that the courts will not hold the new provision of theJudicial Code applicable only in cases arising under the general venueprovisions of the federal courts.27 If, instead, the courts do carry outthe apparent intent of Congress and apply the doctrine of forum nwnconveniens in suits brought under the FELA, they would provide asolution fair to both employee and railroad in that the injured employeewould still have a wide choice of forums but where this right wasabused the courts could protect the defendant by refusing to exercisejurisdiction.KATHERINE S. WRIGHT.Criminal Procedure-Method of Raising Constitutional Issues-Writ of Coram NobisThe federal courts have become increasingly zealous of protectingthe rights of those whose convictions have been obtained without due". United States v. National City Lines, 68 Sup. Ct. 1169, 1182 (1948).2' Section 2283 of the revised Judicial Code incorporates some general excep-tions which the old §265 did not have. One of these exceptions wyas put in tooverrule Toucey v. New York Life Ins. Co., 314 U. S. 118 (1941), which de-cision was followed by Southern Ry. v. Painter, 314 U. S. 155 (1941) (see note5 supra). The exception will not apply in the Painter case, however, because inthat case there was no federal decree to protect as in the Toucey case. See South-ern Ry. v. Painter, supra at 160 (concurring opinion) ; Reviser's Notes to §2283,28 U. S. C. C. S. at page 1910.-" Since the preparation of this note three federal district courts have decidedthat §1404(a) of the revised Judicial Code applies to suits under the FELA.Hayes v. Chicago, R. I. & P. R. R., 79 F. Supp. 821 (D. Minn. 1948); White v.Thompson, 80 F. Supp. 411 (N. D. Ill. 1948); Nunn v. Chicago, M., St. P. &P. R. R., 80 F. Supp. 745 (S. D. N. Y. 1948).1949] NOTES AND COMMENTS 255process of law.1 Whereas, at one time, it was necessary for a petitionerseeking relief from a state conviction by means of a writ of habeascorpus in federal district courts to show that he had exhausted all hisavailable state remedies, 2 it now appears that a petitioner who has ex-hausted but one of several available state remedies, may petition thefederal district court for a writ of habeas corpus. 3 Under this line ofdecisions, however, in default of any state procedure by which thequestion of due process can be raised, the federal courts will take juris-diction.4 In state procedure such questions can of course be raised bymotion for a new trial made in apt time,5 but if this remedy has beenallowed to lapse without fault of the petitioner, he may find himselfdenied due process. In North Carolina no statutory procedure has beenoutlined and there is nothing more than a judicial intimation of theprocedure whereby he may raise these questions and have the meritsof his constitutional claim passed upon by the highest state court.In a recent North Carolina case,6 petitioner had been indicted onseveral capital charges involving first degree burglary. He tenderedpleas of guilty of second degree burglary which were accepted and hewas thereupon sentenced. The statutory period for appeal lapsed andthe term of superior court in which he had been convicted expired,without an appeal having been perfected or a motion for a new trialmade. A year and a half later petitioner applied to a judge of thesuperior court for a writ of habeas corpus, alleging that at his trial hehad been denied due process of law in that he had been unable toemploy counsel and had been denied benefit of counsel when he wasrequired to plead to the capital charges. Upon a hearing the applicationwas dismissed. Petitioner then applied to the supreme court for aI Wade v. Mayo, 68 Sup. Ct. 1270 (1947) ; Loftus v. Illinois, 68 Sup. Ct. 1212(1947) ; Hedgebeth v. North Carolina, 68 Sup. Ct. 1185 (1947) ; Foster v. Illinois,332 U. S. 134 (1946); De Meerleer v. Michigan, 329 U. S. 663 (1946); Hawkv. Olsen, 326 U. S. 271 (1945) ; White v. Ragen, 324 U. S. 760 (1944) ; Housev. Mayo, 324 U. S. 42 (1944); Tomkins v. Missouri, 323 U. S. 485 (1944);Ex parte Hawk, 321 U. S. 114 (1943); Ex parte Davis, 318 U. S. 412 (1943);Mooney v. Holohan, 294 U. S. 103 (1935); Urquhart v. Brown, 205 U. S. 179(1907) ; Note, 26 N. C. L. REv. 217 (1948).2 White v. Ragen, 324 U. S. 760 (1944) ; House v. Mayo, 324 U. S. 42 (1944) ;Ex parte Hawk, 321 U. S. 114 (1943); Ex parte Davis, 318 U. S. 412 (1943);Mooney v. Holohan, 294 U. S. 103 (1935).'Wade v. Mayo, 68 Sup. Ct. 1270 (1947).'Hedgebeth v. North Carolina, 68 Sup. Ct. 1185 (1947); Foster v. Illinois,332 U. S. 134 (1946); Hawk v. Olsen, 326 U. S. 271 (1945); see Mooney v.Holohan, 294 U. S. 103, 115 (1935).IN. C. GEN. STAT. §§15-174, 1-207, 7-11 (1943) ; State v. Dunheen, 224 N. C.738, 32 S. E. 2d 322 (1944); State v. Edwards, 205 N. C. 661, 172 S. E. 399(1933) ; State v. Lea, 203 N. C. 316, 166 S. E. 292 (1932), cert. denied, 287 U. S.668 (1932) ; State v. Cox, 202 N. C. 378, 162 S. E. 907 (1932) ; State v. Casey,201 N. C. 620, 161 S. E. 81 (1931) (motion may be made at trial term only ifno appeal; if appeal, motion can be made the next succeeding term followingaffirmance of judgment on appeal).'In re Taylor, 229 N. C. 297, 49 S. E. 2d 749 (1948).NORTH CAROLINA LAW REVIEWwrit of certiorari to review the judgment in the habeas corpus pro-ceeding. Held: The writ of habeas corpus is not a proper remedy toraise the constitutional question the petitioner seeks to present for review.Certiorari was denied. The court, however, intimated that an appro-priate procedure would have been to petition the supreme court forpermission to file in the superior court a petition for a writ of errorcoram nobis.The writ of error coram iwbis, or corarn vobis,7 is of ancient com-mon law origin. The writ was devised to allow a court which rendereda judgment to review it for an error of fact, existing at the time of thejudgment, but unknown to the court; which fact, if it had been known,would have led to a different result.8 The writ did not lie for an errorof law,9 but was limited exclusively to errors of fact, and has beenused to set aside a previous judgment when plaintiff or defendant was amarried woman ;1o an infant had appeared by attorney instead of by nextfriend or guardian ad litem; a party was insane at time of trial ;12 aparty died before judgment ;13 there was error in the service of processor notice to the other party ;1_4 or clerical mistakes were made in enter-ing the judgment. 5Such a writ has been used as a part of North Carolina procedure1 0and has been regulated by statute,17 but the use of the writ in civil casesseems to have been replaced by statutory remedies, either by motion fora new trial or other appropriate motions.' s12 TIDD, PACTICE OF THE COURTS OF KINGS BENCH 1136 (3d Am. ed. 1840);III BL. Comm. 1158 (4th ed., Cooley, 1899); see Massie v. Hainey, 165 N. C.174, 177, 81 S. E. 135, 136 (1914) ; Roberts v. Pratt, 152 N. C. 731, 736, 68 S. E.240, 242 (1910).,See Roughton v. Brown, 53 N. C. 393, 394 (1861); cases collected in 49C. J. S., JUDGMENTS §312(c).'2 TIDD, op. cit. supra note 7, at 1136.10 Roughton v. Brown, 53 N. C. 393 (1861) ; see Lassiter v. Harper, 32 N. C.392, 394 (1849) ; 1 STEPHEN, PLEADING 119 (3d Am. ed. 1837) ; 2 TroD, op. cit.supra note 7, at 1136." 1 STEPHEN, op. cit. spra note 10, at 119; 2 TIDD, op. Cit. supra note 7, at1136; see cases collected, 49 C. J. S., JUDGMENTS, p. 566 n. 86."2See note, 121 A. L. R. 267 (1939)."3See Tyler v. Morris, 20 N. C. 625 (1839) ; 1 TIDD, op. Cit. supra note 7, at1136; cases collected, 49 C. J. S., JUDGMENTS, p. 567 n. 91.14See Massie v. Hainey, 165 N. C. 174, 178, 81 S. E. 135, 136 (1914) ; casescollected, 49 C. 3. S., JTUDGMENTS, p. 566 n. 76." Haiwassee Lumber Co. v. United States, 64 F. 2d 417 (C. C. A. 4th 1933);see Note, 126 A. L. R. 956 (1940).10 Roughton v. Brown, 53 N. C. 393 (1861) ; Latham v. Hodges, 35 N. C. 267(1852) ; Williams v. Edwards, 34 N. C. 118 (1851) ; Lassiter v. Harper, 32 N. C.392 (1849); Tyler v. Morris, 20 N. C. 625 (1839); see Massie v. Hainey, 165N. C. 174, 81 S. E. 135 (1914).1' N. C. REV. STAT., c. 4, §20 (1836-37). But see Roberts v. Pratt, 152 N. C.731, 68 S. E. 240 (1910).1 Simms v. Sampson, 221 N. C. 379, 20 S. E. 2d 554 (1942); Welch v. Welch,194 N. C. 633, 140 S. E. 436 (1927) (infant improperly represented) ; Cox v.Cox, 221 N. C. 19, 18 S. E. 2d 713 (1942); Hood v. Holding, 205 N. C. 451, 171S. E. 633 (1933) (party insane at time of trial) ; Taylor v. Caudle, 208 N. C.[Vol. 2719491 NOTES AND COMMENTS 257Under the civil procedure of North Carolina, a superior court re-tains jurisdiction of a judgment for a limited time after the close ofthe term,19 but may entertain a motion in the original cause to set asidea judgment for irregularity at any time.2 0  Therefore, since statutoryremedies are available for the same relief which could be obtained atcommon law only by writ of error corarn nobis, these remedies seem tohave superseded the writ in practice.2 1In criminal actions, unlike civil, a superior court does not retainjurisdiction to set aside a judgment on motion after the term has ex-pired22 unless there has been an appeal.2 After the term expires atwhich judgment was rendered in a criminal proceeding, and no appealis taken, the jurisdiction of the superior court ends insofar as the termsof the judgment are concerned. 24 Therefore, the superior court is with-out jurisdiction to entertain any motion by defendant based on a denialof a constitutional right at such trial.The Supreme Court of North Carolina by the constitution 25 andstatutory provision pursuant thereto, 26 is given general supervisoryjurisdiction, and under this power it can grant any remedial writs neces-sary to insure the proper administration of justice in the lower courts.As has been pointed out, the writ of error coram nobis has been a partof North Carolina procedure and will remain so unless specifically abro-gated by statute.2 7  And while it seems no longer to be used in civil298, 180 S. E. 699 (1935) ; Wood v. Watson, 107 N. C. 52, 12 S. E. 49 (1890) ;Knott v. Taylor, 99 N. C. 511, 6 S. E. 788 (1888) ; Lynn v. Lowe, 88 N. C. 478(1883) (death of a party before judgment); Monroe v. Niven, 221 N. C. 362,20 S. E. 2d 311 (1942) ; Groce v. Groce, 214 N. C. 398, 199 S. E. 388 (1938) ;Fowler v. Fowler, 190 N. C. 536, 130 S. E. 315 (1925) (error in service ofprocess) ; Everett v. Johnson, 219 N. C. 540, 14 S. E. 2d 520 (1941) ; Massie v.Hainey, 165 N. C. 174, 81 S. E. 348 (1914) (inadequate notice to other party) ;N. C. Joint Stock Bank v. Cherry, 227 N. C. 105, 40 S. E. 2d 799 (1946) ; Ragenv. Ragen, 202 N. C. 753, 194 S. E. 458 (1937) (clerical mistakes in enteringjudgment) ; see generally Roberts v. Pratt, 152 N. C. 731, 736, 68 S. E. 240, 242(1910); McINrosH, NORTH CAROLINA PRACTI cE AND PROcEDURE §656 (1929).'9 N. C. GEN. STAT. §1-220 (1943) (jurisdiction to set aside for mistake, sur-prise, excusable neglect within one year) ; Federal Land Bank v. Davis, 215 N. C.100, 1 S. E. 2d 350 (1939) ; Abernethy Finance Co. v. First Security Trust Co.,213 N. C. 369, 196 S. E. 340 (1938) (judgment pending until satisfied, open tomotion for execution, recall of execution, determination of proper credits); Mc-INTOSH, op. cit. supra note 18, §§649 et seq."o Federal Land Bank v. Davis, 215 N. C. 100, 1 S. E. 2d 350 (1939); Hoodv. Stewart, 209 N. C. 424, 184 S. E. 36 (1936) ; MCINToSH, op. cit. supra note 18,§653.21 See note 18 supra.-2 State v. Edwards, 205 N. C. 661, 172 S. E. 399 (1933) ; State v. Casey, 201N. C. 620, 161 S. E. 81 "(1931) ; Lancaster v. Bland, 168 N. C. 377, 84 S. E. 529(1915)." State v. Edwards, 205 N. C. 661, 172 S. E. 399 (1933); State v. Lea, 203N. C. 316, 166 S. E. 292 (1932); State v. Cox, 202 N. C. 378, 162 S. E. 907(1932) ; State v. Casey, 201 N. C. 620, 161 S. E. 81 (1931).4 Cases cited note 5 supra. 2 N. C. CoNsT. Art. IV, §8.2' N. C. GEN. STAT. §7-10 (1943).' N. C. GEN. STAT. §4-1 (1943).NORTH CAROLINA LAW REVIEWactions, there is no reason why it should not be used in criminal actionswhere there is no other adequate remedy.28 From the nature and pur-pose of the writ it could not be used by the supreme court, because thewrit does not lie from a higher to a lower court,20 but the supremecourt under its supervisory powers could direct and empower the superiorcourt to assume jurisdiction of the prior cause and to hear the petitionfor the writ. Such action on the part of the supreme court would bediscretionary. Even so, if the court in its discretion declined to exer-cise its power to direct the superior court to hear the petition for thewrit on the grounds that the application did not show substantial merit,the applicant would have had his constitutional claim passed upon bythe highest state court.80 On the other hand, if the supreme court shouldgrant the application, the superior court would then be empowered tohear the petition for the writ of error corain nobis, and to pass upon theconstitutional questions presented. From an adverse judgment on thepetition, an appeal would lie to the supreme court. But in view of theopinion In re Taylor,8 1 undoubtedly this procedure must be followedhereafter before the federal courts will entertain a petition for a writ ofhabeas corpus to review questions arising in North Carolina involvingthe denial of due process.32EMERY B. DENNY, JR.Criminal Procedure-Present Insanity-Determination of theIssue When Raised Before TrialWhen the case of State v. Sullivan1 was called for trial, the attorneyfor the defendant (charged with breaking and entering with intent tocommit a felony) desired to enter the plea of incapacity to plead to thebill of indictment and submitted the issue of defendant's mental capacityas the only issue at that time. The court announced, however, that boththat issue and the issue of guilt or innocence would be submitted to thejury at the same time. Defendant, through his counsel, objected to thisruling, excepted, and appealed. The Supreme Court held that the sub-mission to the same jury of both issues at the same time was a matter2 8 N. C. GEN. STAT. §4-1 (1943); cf. Jones v. Commonwealth, 269 Ky. 779,108 S. W. 2d 816 (1937) (overruled on another point, Smith v. Buchanan, 291Ky. 44, 163 S. W. 2d 5 [1942], modified on other points, Day v. Commonwealth,296 Ky. 483, 177 S. W. 2d 391 [1944]) ; Carlsen v. State, 129 Neb. 84, 261 N. W.339 (1935).29 Roughton v. Brown, 53 N. C. 393 (1861).20 Taylor v. Alabama, 68 Sup. Ct. 1415 (1947) ; Hysler v. Florida, 315 U. S.411 (1941)."'229 N. C. 297, 49 S. E. 2d 749 (1948).22 Taylor v. Alabama, 68 Sup. Ct. 1415 (1947) ; Hedgebeth v. North Carolina,68 Sup. Ct. 1185 (1947); Foster v. Illinois, 332 U. S. 134 (1946); Hysler v.Florida, 315 U. S. 411 (1941).-229 N. C. 251, 49 S. E. 2d 458 (1948).[Vol. 27

Criminal Procedure -- Method of Raising Constitutional Issues -- Writ of Coram Nobis

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Criminal Procedure -- Method of Raising Constitutional Issues -- Writ of Coram Nobis

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