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UNITED STATES EX REL. DUNKLE v. CAVELL

May 9, 1957

UNITED STATES of America ex rel. Charles N. DUNKLE
v.
Angelo C. CAVELL, Warden, Western State Penitentiary, Pittsburgh, Pennsylvania



The opinion of the court was delivered by: GOURLEY

In this loosely drawn petition, prepared in handwriting and apparently without aid of counsel, request is made for issuance of writ of mandamus and/or writ of error coram nobis.

Petitioner's request for the granting of a writ of mandamus against the President Judge of the Orphans' Court of Erie County, Pennsylvania, based upon his contention that he was de denied his constitutional rights, is untenable. The law is well settled that a Judge of the United States District Court is without authority to issue a writ of mandamus against state officers in the exercise of their discretionary duties.

As an alternative, petitioner premises his request for writ of error coram nobis upon two propositions:

 1. His counsel was not present when the jury's verdict was rendered or when sentence was pronounced.

 2. The principal Commonwealth witness had once been an inmate of a mental institution and was therefore incompetent to testify.

 The law is well settled that writ of coram nobis is employed for correction of errors of fact in the same court where the judgment was rendered. The power to vacate a judgment for errors of fact exists where the errors are of the most fundamental character, that is, such as render the proceeding itself irregular and invalid. Failure of a defendant to make a showing that a retrial would have a different result is ground for denial of a motion in the nature of coram nobis to set aside his sentence. Dunn v. United States, 6 Cir., 238 F.2d 908.

 I am satisfied that no rule of law excludes the testimony of a person who had once been confined to a mental institution and that the matter is not cognizable on coram nobis without the appearance of facts that the witness was insane at trial. Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823; Commonwealth v. Carluccetti, 369 Pa. 190, 85 A.2d 391. Nor is the allegation of failure to have counsel present at time of verdict or sentence a matter germaine to the instant petition.

 At best, petitioner's allegations appear to raise issues includable in a petition for habeas corpus.

 The formal requirements in a petition for writ of habeas corpus are as follows:

 1. The petition be in writing addressed to the court authorized to issue the writ.

 2. It should set forth the place of petitioner's confinement, and the name and address of the person in whose custody the prisoner is restrained.

 3. It must allege that the petitioner is unlawfully restrained of his liberty and show precisely the alleged illegality of restraint, by stating the pertinent facts in such a manner as to make possible an intelligent judgment upon the question.

 4. It should state by what authority the respondent purports to detain the petitioner.

 5. If the petitioner does not know by what authority he is being detained, ...


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