Opinion
June 17, 1955. Rehearing Denied September 16, 1955.
Appeal from the Circuit Court, Shelby County, Coleman Wright, J.
Willie Cowan, pro se.
J.D. Buckman, Jr., Atty. Gen., George B. Akin, Asst. Atty. Gen., for appellees.
Willie Cowan appeals in forma pauperis from an order denying his motion for a writ of error coram nobis. Appellant complains of various errors committed in the trial resulting in his conviction on May 14, 1952, under an indictment charging the carrying of a deadly weapon with two previous convictions of a felony. His punishment was fixed at confinement in the state penitentiary for five years. He is now serving this sentence.
The two previous convictions and punishments were for storehouse breaking, four years and one day, on February 16, 1935, and feloniously taking and operating a motor vehicle without consent of the owner, one year, on February 18, 1949. Neither conviction was vacated, modified, set aside, or appealed from.
At the trial upon which appellant received the third felony conviction, he was represented by counsel. The record showed that a demurrer was overruled to the indictment, appellant entered his plea of not guilty, testimony for the Commonwealth was heard, and appellant declined to introduce any evidence. After hearing the instructions of the court and argument of counsel, the jury retired and brought back a verdict finding him guilty and fixing the punishment.
The appellant urges many alleged errors as the basis for the writ sought. The matters complained of would have been available for consideration on appeal. No appeal was sought on the judgment for the third conviction.
The old common-law writ of error coram nobis is an extraordinary remedy retained in our criminal law to be used in correcting a hidden or unseen error. Its function is to rectify a misjustice which could not have been corrected upon appeal because at such time the existence of the error in the proceeding, or of some new or undiscovered pertinent fact, was unknown and could not have been discovered by the exercise of proper diligence. Anderson v. Buchanan, 292 Ky. 810, 168 S.W.2d 48; Day v. Commonwealth, 296 Ky. 483, 177 S.W.2d 391; Walsh v. Tuggle, 303 Ky. 200, 197 S.W.2d 253.
The writ does not issue as a matter of right but its granting is in the sound discretion of the judge who tried the accused upon a showing that there is a strong probability of a miscarriage of justice. Bircham v. Commonwealth, Ky., 245 S.W.2d 932. The trial court found no proper basis for the issuance of such a writ and correctly dismissed the motion.
Judgment affirmed.