tion must be one of law and not of fact; and the certificate must be accompanied by a proper statement of the ultimate facts on which the question of law to which an answer is desired arises.16 A statute which provides that if any question of law shall arise which in the opinion of the court is of such doubt and importance, and so affects the merits of the controversy, that it ought to be determined by the reviewing court before further proceedings, or if a motion in arrest of judgment be made, the court in which the cause is pending may certify such question or motion to the reviewing court for that purpose, and stay all further proceedings until the question is heard and determined, requires several elements to concur before a question can be certified: (1) The question must be one of doubt; (2) it must be a question of importance; (3) it must so affect the merits of the controversy that it ought to be determined by the reviewing court before further proceedings; and (4) all these elements must be so determined to exist by the court before which the cause is pending. This obviously excludes doubtful questions which are not important, as well as important questions which are not doubtful, and both classes of questions unless they so affect the merits of the controversy as to require decision by that court. It excludes also the sending of questions which may possess all three of these attributes in the opinion of counsel, unless it is the deliberate opinion of the court that the questions contain the elements above set forth, and it equally authorizes the court to certify such questions even though counsel do not consider it necessary so to do. Speculative and moot questions are not to be certified under a pro forma ruling because of an agreement of counsel; but only questions which, as above stated, so affect the merits of the controversy in the opinion of the court as to make a decision of them necessary.17 258. Matters Relating to Pleading and Evidence. The question whether a general demurrer to a complaint should be sustained is not a proper one for certification, as in the consideration of such a general question, many questions subordinate in nature would be bound to arise which would have to be settled before it could be determined whether a general demurrer to the complaint should be sustained.18 Obviously the same considerations apply to the question whether an indictment is sufficient in law. Somewhat along the same line are questions which require a consideration of the whole case on the facts; for instance, a question whether the evidence in a criminal 16. Grand Forks County v. Frederick, 16 N. D. 118, 112 N. W. 839, 125 A. S. R. 621; Willey v. Decker, 11 Wyo. 496, 73 Pac. 210, 100 A. S. R. 939. 31 L.R.A. 394, 395 note. 17. State v. Karagavoorian, 32 R. I. 477, 79 Atl. 1111, Ann. Cas. 1912D 1092. 18. Waco Water & Light Co. v. Waco, 86 Tex. 661, 26 S. W. 943, 31 L.R.A. 392 and note. case is sufficient to establish the offense charged, or whether on the whole evidence a plaintiff is entitled to recover, or whether a verdict is supported by the evidence, is improper.19 XVI. CORAM NOBIS AND CORAM VOBIS 259. Definition.-The writ of coram nobis or coram vobis was a common-law writ, the purpose of which was to correct a judgment in the same court in which it was rendered. In some cases, especially in the United States, the writ is called coram nobis or coram vobis indiscriminately, but the distinction pointed out at an early date as regards the English practice is that the writ "is called coram nobis or coram vobis according as the proceedings are in the king's bench or the common pleas, because the record is stated to remain before us (the king) if in the former, and before you (the judges) if in the latter." The distinction between an ordinary writ of error and a writ of error coram nobis is that the former is brought for a supposed error in law apparent on the record, and takes the case to a higher tribunal, where the question is to be decided and the judgment, sentence or decree is to be affirmed or reversed, while the latter is brought for an alleged error in fact not appearing on the record and lies to the same court in order that it may correct the error which it is presumed would not have been committed had the fact in the first instance been brought to its notice.2 260. General Use of Writ.-Though, due to other statutory remedies, the use of the writ of coram nobis or coram vobis is not, under modern practice, frequent, still it exists as a common-law remedy except where it has been abolished by statute; and, though seldom resorted to in criminal cases, it is conceded by the courts to be an appropriate remedy in them as well as in civil actions; and in recent times the writ of coram nobis has been very effectually resorted to in a criminal case where no other form of judicial relief existed." A writ of coram nobis to correct an error of fact can be issued only by the same court which rendered the judgment, nor can a court by 19. 31 L.R.A. 394, 396 note. 1. Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29; Fugate v. State, 85 Miss. 94, 37 So. 554, 107 A. S. R. 268, 3 Ann. Cas. 326. 46 Am. Dec. 257 note; 18 L.R.A. 838 note. 2. Fugate v. State, 85 Miss. 94, 37 So. 554, 107 A. S. R. 268, 3 Ann. Cas. 326. 46 Am. Dec. 259 note. 3. Adler v. State, 35 Ark. 517, 37 Am. Rep. 48; Beard v. State, 79 Ark. R. C. L. Vol. II.-20. 293, 95 S. W. 995, 97 S. W. 667, 9 Ann. Cas. 409; Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29; Fugate v. State, 85 Miss. 94, 37 So. 554, 107 A. S. R. 268, 3 Ann. Cas. 326 and note. 46 Am. Dec. 258 note. 4. Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29; Fugate v. State, 85 Miss. 94, 37 So. 554, 107 A. S. R. 268, 3 Ann. Cas. 326 and note. 5. State v. Calhoun, 50 Kan. 523, 32 Pac. 38, 34 A. S. R. 141, 18 L.R.A. 838. 305 such a writ reach a judgment of a higher court affirming its own judgment. Also it may be noted that a writ of coram vobis has been said to be inappropriate to chancery proceedings. The power of the highest appellate court to review its own judgment rendered on an appeal through a writ of error coram nobis has been expressly upheld, and properly so, for, the court being the highest tribunal, no other court can examine its proceedings, and if the writ of error coram nobis is refused, wrongs resulting from errors in fact of the court would remain without redress.8 On the other hand, it has been held that the appellate court has no authority, after the term at which its judgment was rendered, to issue a writ of coram vobis to review the judgment. The authority of the United States circuit courts to issue writs of error coram nobis cannot be considered as settled.10 It is said that in England the writ of coram nobis did not lie to the House of Lords because it was inconsistent with the dignity of that court to take cognizance of facts;11 nor does the writ of error coram vobis lie.12 However, it was settled at an early date that for errors. in fact in the King's Bench the judgments of that tribunal could be reversed in the same court by a writ of error coram nobis.18 In some jurisdictions the writ of error coram nobis is regulated by statute, and in a few jurisdictions it has been abolished.14 When a proper remedy is afforded by appeal or ordinary writ of error the writ will not, it seems, lie.15 261. Nature, Character and Operation of Writ.-The writ of coram nobis or coram vobis issues, it would seem, as of right when a proper case is made to appear;16 still it is not allowed as of course, but only on its being made to appear with reasonable certainty that there has been some error of fact,17 and it has even been said that the writ is not a writ of right but can be granted only on an affidavit showing an error of fact and that the discretion of the court in refusing it is not reviewable.18 The writ of coram nobis is not strictly a "writ of error" within the meaning of a statute requiring bail on 6. Land v. Williams, 12 Smedes & M. (Miss.) 362, 51 Am. Dec. 117. 18 L.R.A. 839 note. 7. Reid's Adm'r v. Strider's Adm'r, 7 Grat. (Va.) 76, 54 Am. Dec. 120. 8. Dows v. Harper, 6 Ohio 518, 27 Am. Dec. 270. 9. Reid's Adm'r v. Strider's Adm'r, 7 Grat. (Va.) 76, 54 Am. Dec. 120. And see supra, par. 218, as to when the jurisdiction of the appellate court ter minates. 10. 3 Ann. Cas. 329 note. 12. Reid's Adm'r v. Strider's Adm'r, 7 Grat. (Va.) 76, 54 Am. Dec. 120. 13. Dows v. Harper, 6 Ohio 518, 27 Am. Dec. 270. 14. 3 Ann. Cas. 329 note. 15. Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29. 3 Ann. Cas. 329 note. 16. State v. Sanders, 85 Ind. 318, 49 Am. Rep. 29. 18 L.R.A. 841 note. 17. 46 Am. Dec. 260 note. 18. Tyler v. Morris, 20 N. C. 487, 11. Dows v. Harper, 6 Ohio 518, 27 34 Am. Dec. 395 and note Am. Dec. 270. 46 Am. Dec. 261 note. a writ of error;19 and it is not of itself a supersedeas, but may or may not be according to circumstances, which are to be judged of by the court.20 The proceedings, though used to correct a sentence in a criminal case, have been considered as civil in their nature and not criminal.1 262. Scope of Writ.-The purpose of the writ of coram nobis is to bring before the court rendering the judgment matters of fact which if known at the time the judgment was rendered would have prevented its rendition. It lies to correct errors in fact only, and will not lie to correct errors in law; nor will it lie to permit the review of a judgment for after-discovered evidence. The infancy of a defendant who appeared only by attorney has been held to be ground for a writ of coram nobis, but when the writ is brought to set aside a judgment against an infant by confession of his attorney it may be denied, under the circumstances of the case, on the ground of laches." The coverture of a woman who was not given by statute the power to sue or defend without her husband has also been held to be ground for the writ where the husband was not joined with her and such fact was not brought to the attention of the court. Another fact which affords ground for the writ is the death of a party before the judgment was rendered, and the same has been held true where a venditioni exponas was issued after the death of the judgment debtor. Also the writ may be used to review a judgment rendered without notice, or where through the fraud of the attorney of the plaintiff in the cause a judgment by default was taken. The writ has also been held proper where error was committed in dismissing a cause for the supposed want of a prosecution bond.10 In a criminal prosecution 19. 18 L.R.A. 842 note. 4. Withrow v. Smithson, 37 W. Va. 20. Tyler v. Morris, 20 N. C. 487, 34 757, 17 S. E. 316, 19 L.R.A. 762. Am. Dec. 395. 46 Am. Dec. 261 note; 18 L.R.A. 842 note. 1. State v. Calhoun, 50 Kan. 523, 32 Pac. 38, 34 A. S. R. 141, 18 L.R.A. 838. 2. Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29; Collins v. State, 66 Kan. 201, 71 Pac. 251, 97 A. S. R. 361, 60 L.R.A. 572; Kemp v. Cook, 18 Md. 130. 79 Am. Dec. 681; Land v. Williams, 12 Smedes & M. (Miss.) 362, 51 Am. Dec. 117; Fugate v. State, 85 Miss. 94, 37 So. 554, 107 A. S. R. 268, 3 Ann. Cas. 326; Withrow v. Smithson, 37 W. Va. 757, 17 S. E. 316, 19 L.R.A. 762. 46 Am. Dec. 259 note; 18 L.R.A. 840 note. 3. 18 L.R.A. 840 note. 18 L.R.A. 840 note. 5. Kemp v. Cook, 18 Md. 130, 79 Am. Dec. 681. 6. Withrow v. Smithson, 37 W. Va. 757, 17 S. E. 316, 19 L.R.A. 762. 18 L.R.A. 840 note. 7. Tyler v. Morris, 20 N. C. 487, 34 Am. Dec. 395; Dows v. Harper, 6 Ohio 518, 27 Am. Dec. 270; Giddings v. State, 28 Tex. 732, 91 Am. Dec. 336; Withrow v. Smithson, 37 W. Va. 757, 17 S. E. 316, 19 L.R.A. 762. 51 Am. Dec. 117 note; 18 L.R.A. 840 note. 8. 18 L.R.A. 840 note. 9. Wynne v. Governor, 1 Yerg. (Tenn.) 149, 24 Am. Dec. 448. 46 Am. Dec. 259 note. 10. 46 Am. Dec. 259 note. where the accused was forced through well founded fears of mob violence to plead guilty, it has been considered that he is entitled to relief through the writ, and the judgment of conviction may be set aside and a new trial granted.11 And since it is material both whether the accused was influenced by the fear of mob violence and whether such fear was well founded, it has been held proper to permit the accused to show threats of violence made both before and after the entering of his plea of guilty, though many of them were not communicated to him before the entering of his plea. In a proceeding for such a cause the question of the guilt or innocence of the accused is not a necessary subject of inquiry, as a mob cannot by compelling a person to plead guilty so shift the burden of proof from the state to the accused as to compel him to prove his innocence.12 The writ has been held to lie to correct such an error of fact as the conviction of a slave as a free person.18 As regards the effect of the lunacy of the defendant at the time the judgment was rendered against him, which fact was not presented to the court, the authorities are in conflict, although both text writers and the courts have asserted that it is ground for relief by writ of error coram nobis.14 Also where the accused was insane at the time of his conviction cases holding that he may secure relief by the writ are to be found.15 On the other hand, there is good authority for the proposition that a writ of error coram nobis will not lie on the ground of the defendant's insanity when the judgment was rendered against him, and that relief must be sought in equity.16 Only such errors in fact as are consistent with the record can be assigned; the writ will not reach facts actually determined in the original proceedings, 17 for, as has been said, the records of the courts of justice, being things of the greatest credit, cannot be questioned but by matters of equal notoriety with themselves; wherefore, though the matter assigned for error should be proved by witnesses of the best credit, yet the judges would not admit of it.18 The writ cannot be invoked for the purpose of revoking a judgment in a criminal prosecution by showing that certain jurors prior to having qualified as such had formed or expressed opinions unfavorable to 11. Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29; State v. Calhoun, 50 Kan. 523, 32 Pac. 38, 34 A. S. R. 141, 18 L.R.A. 838. 12. State v. Calhoun, 50 Kan. 523, 32 Pac. 38, 34 A. S. R. 141, 18 L.R.A. 838. 13. 18 L.R.A. 840 note. 14. Allison v. Taylor, 6 Dana (Ky.) 87, 32 Am. Dec. 68; Leach v. Marsh, 47 Me. 548, 74 Am. Dec. 503. But see King v. Robinson, 33 Me. 114, 54 Am. Dec. 614. |