People v. Carmody

DORAN, J. The defendants Carmody and Juber were charged with the crime of robbery while armed with a deadly weapon; each pleaded “Not Guilty” and denied being armed as alleged. In a trial by jury the defendants were found guilty of robbery in the first degree, and each was found to have been armed with a deadly weapon. On September 17, 1948, Judge Frank C. Collier, the trial judge, having died, probation was denied by Judge Paul Nourse, as to each defendant on the ground that the trial court had no discretion in the matter since the probation reports indicated that the men were armed with deadly weapons. On the same day both defendants were sentenced to the state prison for the term prescribed by law.

Thereafter, on October 26, 1948, defendants filed a motion to set aside the judgment; a second such motion was filed on December 13, 1948; on December 15, 1948 this motion, treated as a petition for a writ of error coram nobis, was denied. On the defendant Carmody’s appeal from such order, [369]it is contended that the trial court erred in denying the petition for writ of error coram nobis; that in denying probation the trial court acted under a mistake of fact as well as of law, which mistake may be corrected by a writ of error coram nobis.

In a “Memorandum Opinion and Order,” the trial court stated that probation was denied “under the belief that I had no discretion in the matter . . . induced by the statement to that effect in the probation reports before me, and statement therein which indicated that these men were armed, one with an automatic pistol and one with a revolver. Prom these reports I assume that the evidence must have shown that these guns were loaded and therefore were deadly weapons. . . . After these men were sentenced and when their time to move for a new trial or to appeal had expired, and they had been detained under the sentences that I pronounced, the case of People v. Morris Carmody came before me for trial. . . . charged with being a party to the same robbery. ’ ’

At that trial it was brought to the court’s attention for the first time “ (1) That the automatic pistol carried by defendant Juber was not loaded and that he had in the presence of one of the victims pulled the trigger several times to demonstrate that the pistol was not loaded. (The District Attorney now states that the evidence . . . showed said automatic to be a toy pistol.) 2. That the only evidence that the revolver carried by defendant Richard Carmody was loaded was the testimony of one of the victims, Mrs. Macchia, . . . that she noticed the cylinder on the revolver and by the light coming through the doorway thought she saw bullets in the cylinder. This witness is of a very excitable nature. Her testimony as to seeing bullets was uncertain and was not at all convincing to me. . . . That at the time Morris Carmody was arrested the revolver in question was found wrapped in cloth under the front seat of his car and was unloaded, and no cartridges were found in his possession. (This arrest took place about two months after the robbery in question.) ”