Opinion
[No. 12, September Term, 1958.]
Decided October 24, 1958. Certiorari denied, 359 U.S. 945.
CORAM NOBIS — Error For Which Writ May Be Issued — Not For Review Of Evidence Or To Consider Issues Raiseable By Appeal. In order to issue the writ of error coram nobis, the alleged error must inhere in facts not actually in issue at the trial and unknown to the court when the judge entered his judgment, but which, if known, would have prevented the judgment. It is not the purpose of the writ of error coram nobis to review evidence presented at the trial, nor is it its purpose to consider issues that may properly have been raised by appeal. The defendant in a criminal case is not entitled to the writ because (1) there was a discrepancy between the allegations of the indictment and the arrest report, (2) the evidence was inconsistent with the allegations of the indictment, and (3) the entire case against him was fraudulent, where the allegation of fraud is unsupported. pp. 50-51
CONSTITUTIONAL LAW — Md. Const., Art. 4, § 23, Not Mandatory, But Directory. The requirement of Md. Const., Art. 4, Sec. 23, that the judges of the Circuit Courts and of the Courts of Baltimore City shall render their decisions within two months after the cases have been argued or submitted is not mandatory, but directory. Rule applied in case of petition for writ of error coram nobis in a criminal case. p. 51 Decided October 24, 1958.
Appeal from the Criminal Court of Baltimore City (NILES, C.J.).
Richard Floyd Myers, who had been convicted in a criminal case, filed a petition for a writ of error coram nobis. From an order denying the petition, he appealed.
Order affirmed.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
Submitted on brief by Richard Floyd Myers, in proper person.
James H. Norris, Jr., Special Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, and J. Harold Grady, State's Attorney for Baltimore City, on the brief, for appellee.
This is an appeal by Richard Floyd Myers from an order by Chief Judge Niles of the Supreme Bench of Baltimore denying his petition for a writ of error coram nobis.
The petitioner contends there is a discrepancy between the allegations of the indictment against him and the arrest report, and further contends that the evidence presented to the trial court was inconsistent with the allegations in the indictment. The indictment was, of course, before the judge at the time of the petitioner's trial, and a review of the averments of the petition does not show reliance on any material fact not known to the court at the time of trial. In order to issue the writ of error coram nobis, the alleged error must inhere in facts not actually in issue at the trial and unknown to the court when the judge entered his judgment, but which, if known, would have prevented the judgment. Keane v. State, 164 Md. 685. Thus Myers has not alleged a ground upon which the writ should issue.
In his reply brief the petitioner does contend that the entire case against him was fraudulent; however, these allegations are unsupported. It is not the purpose of the writ of error coram nobis to review evidence presented at the trial, nor is it its purpose to consider issues that may properly have been raised by appeal. Bernard v. State, 193 Md. 1.
Myers' final contention is that the trial judge did not abide by Art. IV, Sec. 23 of the Maryland Constitution, because he did not render his decision on the petition "within two months" after it was submitted. It has been held that Sec. 23 is not mandatory, but directory, and thus there was no loss of jurisdiction to pass upon the petition. Suttleman v. Board of Liquor License Commissioners, 209 Md. 134, 140; Snyder v. Cearfoss, 186 Md. 360.
For the reasons stated, we accordingly affirm the order of Judge Niles dismissing the petition.
Order affirmed.