Keane v. State

Oeeutt, J., delivered the opinion of the Court. Frank Keane was on March 26th, 1929, indicted in the Criminal Court of Baltimore City for robbery with a deadly weapon, and later on that charge tried, convicted, and sentenced to a term of ten years in the Maryland penitentiary. On June 13th¿ 1932, over three years after he. was sentenced, he filed in the same court a petition for a writ of coram nobis on the ground (1) that the prosecuting witness, the only person who at the trial identified him as the person who committed the crime charged in the indictment, subse ⁶⁸⁷ quently admitted that he had been mistaken in his identification, and (2) that two other persons present when that crime was committed, although the petitioner was exhibited to them, failed to identify him, but that that fact was not presented to the jury which tried him, and that, in consequence, although innocent of the crime with which he was charged, he was, through the mistaken identification of the; prosecuting witness and the failure of the State to call the other two eyewitnesses who were unable to identify him, convicted thereof. He accordingly asked the court to grant the writ and review the facts of the case.

Supporting affidavits were filed in connection with the petition, and on November ,5th, 1932, the court, in an elaborate and interesting review of the history and functions of the writ .and its relation to the relief prayed, decided that it afforded no relief against such a mistake of fact as that alleged in the petition, and accordingly dismissed it. The appeal is from that order. Erom the pleadings and affidavits it appears that on March 16th, 1929, two men armed with pistols entered a branch store of the Crook’s Stores on Clifton Avenue in the City of Baltimore and robbed Herman Bradley, the manager, ■of $368. There were present at the time two clerks, William E. Jackson and John William Hook.

Subsequently Keane was arrested and charged with the crime. At the ensuing trial Bradley positively identified him as one of the two men who had robbed him, but neither of the two clerks was called, and, as stated above, Keane was convicted and •sentenced. In June, 1930, Keane interested Theodore H. Dorsey, who had preached at the penitentiary where Keane was confined, and he (Dorsey) interviewed Bradley and asked him if “he was absolutely certain that he had picked the right man.” At first Bradley was indignant that there should be any question about his testimony, but later stated that he had become convinced of his error in identifying Keane, “mainly as a result of having seen in a daily newspaper pictures of two other men, Eawlings Whittemore and a certain Minnor, also charged with robbery; that he showed the ⁶⁸⁸ pictures to the two clerks, Hook ancl Jackson, and he and they recognized them as pictures of the two men who had robbed Bradley; that Bradley was afraid to bring this information to the attention of the “authorities”, because he feared he would lose his position. Subsequently Bradley informed the state’s attorney’s office of his alleged error, and he was then summoned to the Maryland penitentiary and shown prisoners who were lined up for identification.

In the line were Hawlings Whittemore, whose picture he had seen, and Keane. He identified Keane, not as having been present at the robbery, but because he had seen him before, but failed at the time to recognize Whittemore. It is also alleged that before the trial the two clerks informed the State through its prosecuting officers that they were unable to identify the robbers, because they were so frightened that they could not remember their faces. But in their affidavits filed with the petition they said they had seen, the robbers, had had a good look at their faces, that one of them made the two clerks hold up their hands while the robbery occurred and until the robbers left the store.

Jackson said that he did not think Keane was present, and Hook said that, when he was taken to a “police line up,” he was unable to identify any one in it as Keane. There was filed in the case by the State what is called an “agreed statement of facts,” but, as it appears to have been “agreed” to only by the deputy state’s attorney, it has no probative force, except as an affidavit. From what has been said it is. apparent that the purpose of this proceeding was to have the Criminal Court of Baltimore City reverse a judgment entered over three years before the petition was filed, (1) because a witness who did testify in the case gave false testimony which he mistakenly believed to be true, and (2) because two other persons pres-' ent when the crime was committed, and who had a “good look” at the robbers, were not called by the State, when, if called, one would have said that he did not “think” Keane was one of the robbers, and the other might have said the same thing. ⁶⁸⁹ To effect that purpose, the appellant asked the court to issue a writ of error comm nobis, on the theory that under such a writ it could review the evidence given before the trial jury on the issues then in the case, and affirm or reverse the judgment therein, accordingly as it found that the evidence adduced in connection with the petition indicated that the evidence before the trial jury was true or false. But an examination of the history and origin of the writ demonstrates that it cannot be invoked for any such purpose.

The writ itself was a common law writ which in England issued out of the Court of Chancery to the Court of King’s Bench, in which case, because of the fiction of the King’s presence, it was called a writ of error comm nobis, or to the Common Pleas, when it was called a writ of error comm vobis, for the purpose of correcting error of fact. Its efficacy and usefulness in this country have in some states been destroyed by statute, and in all to some extent modified by statute or practice, but where applicable it applies to criminal as well as to- civil cases. In the original as well as in the modem practice, its purpose was not to' permit a review of the evidence given in' connection with the issues actually tried, to determine whether witnesses who actually testified before a jury sworn on those issues testified falsely, but'to determine whether facts existed which were not known to the court at the trial and not in issue under the pleadings, but which, if known, would have prevented the judgment which actually was entered from being entered. And that must necessarily have been so, for if the effect of the writ was to permit the court in which the judgment was entered to decide whether the witnesses in the‘case had testified falsely, and, if it decided that they had, to reverse it, instead of being the end of the litigation, the judgment might well be but the beginning of it.

In speaking of its purpose, Stephen, in his work on Pleaching, says: “So if a matter of fact should exist which was not brought into- issue, but which, if brought into issue, would have led to a different judgment, the existence of such ⁶⁹⁰ fact does not, after judgment, amount to error in the proceedings. For example, if the defendant has a release, but does not.plead it in bar, its existence cannot, after judgment, on the ground of error or otherwise, in any manner be brought forward. But there are certain facts which affect the validity and regularity of the legal proceeding itself; such as the defendant having appeared in the suit while under age by attorney and not by guardian; or the plaintiff or defendant having been a married woman when the suit was commenced. Such facts as these, however late discovered and alleged, are errors in fact and sufficient to reverse the judgment upon writ of error.” Andrews’ Stephen's Pleading, 203.

And in Black on Judgments, sec. 300, it is said: “But if the court was fully informed of and rightly apprehended the facts in the case, its error in applying the law to’ such facts is not such an error as could be rectified in this proceeding. .Nor will this writ lie to contradict or put in issue any fact that has been already adjudicated in the action. Thus, if the record states that the defendant appeared and confessed judgment, he cannot controvert that fact after the expiration of the term for the purpose of setting aside the judgment.” This court appears to have considered the scope and purpose of the writ for the first time in this state in Hawkins v. Bowie, 9 G. & J. 437 , cited in Kemp v. Cook, 18 Md. 130 , where the court said: “ ‘Since the case of Hawkins v. Bowie, 9 G. & J. 437 , there ought to be no doubt in Maryland, that a writ of error coram nobis lies to correct an error in fact, in the same court where the record is. If there be error in the process, or through default'of the clerk, it shall be reversed in the same court by writ of error thereon before the same judge.’ Bridendolph v. Zellers, 3 Md. 333 . The office and application of this writ is thus described in Saunders’ Reports: ‘So a writ of error may be brought in the same court for an error in fact; thus, where an erroneous judgment is given in matter of fact only, and not in point of law, in the King’s Bench, it may be reversed in the same ⁶⁹¹ court by writ of error,