Catlett v. Chestnut , 120 Fla. 636 ( 1935 )

This case comes before us on extraordinary motion for rehearing and amended motion for leave to apply to the Circuit Court for writ of error coram nobis; amended response to such action and motion to dismiss and motion to strike plaintiff in error's motions.

The extraordinary motion for rehearing is denied because it presents nothing which may or could properly be considered which has not already been fully considered by this Court and determined adversely to the contentions of the plaintiff in error.

The motion to grant leave to plaintiff in error to apply to the court below for a writ of error coram nobis is denied because on consideration of the whole record presented a case which warrants the issuance of such writ is not made primafacie to appear.

The most that the record may be said to make to appear is that a person not a party to the suit and not of counsel for any party to the suit may have committed or rather attempted to commit embracery with one of the jurors engaged in the trial of the cause, but the record fails to show even prima facie that such attempt resulted in reaching or in influencing the jury or any juror engaged in such trial.

"Writ of error coram nobis is not allowed unless error of fact appears with reasonable certainty. Supreme Court granting leave to file petition for writ of error coram nobis constitutes mandate that lower court allow writ so that question of fact may be determined." Chambers, et al., v. State, 117 Fla. 642, 158 So.2d 153.

No fact being made to appear which existed at the time of and during trial which fact was unknown to the court and which fact, had it then been known to the court, would have precluded the entry of the judgment complained of, having been made to appear with reasonable certainty, the motion for leave to file petition as hereinbefore stated is denied.

The mandate heretofore recalled shall now be transmitted to the court below.

So ordered.

WHITFIELD, C. J., TERRELL, BUFORD and DAVIS, J. J., concur.