Sanders v. State. Toney, 11 d. 661; Powell v. Gott, 13 id. 458; in New York, Higbie v. Comstock, 1 Denio, 352; Maher v. Comstock, 1 How. Pr. 175; Smith v. Kingsley, 19 Wend. 620; in North Carolina, Roughton v. Brown, 8 Jones, 393; in Ohio, Dows v. Harper, 6 Ohio, 518 (27 Am. Dec. 270); in Pennsylvania, Wood's Exr's v. Colwell, 34 Penn. St. 92; in Tennessee, Hillman v. Chester, 12 Heisk. 34; Patterson v. Arnold, 4 Cold. 364; Wynne v. Governor, 1 Yerg. 169 (24 Am. Dec. 448); Crawford v. Williams, 1 Swan, 341; in Texas, Mills v. Alexander, 21 Tex. 154; Moke v. Brackett, 28 id. 443; Giddings v. Steele, id. 732; and in Virginia, Reid's Adm'r v. Strider's Adm'r, 7 Gratt. 76. It is declared to be a part of the judicial procedure of the United States. Pickett v. Legerwood, 7 Pet. 144; Strode v. Stafford, 1 Brock. (U. S. C.) 162; United States v. Plumer, 3 Cliff. (U. S. C.) 1. In Pickett v. Legerwood, supra, it was said: "The cases for error coram vobis are enumerated without any material variation in all the books of practice, and rest on the authority of the sages and fathers of the law." Our text-writers agree in holding that the remedy exists, unless superseded or abolished by statute. Powell Appellate Proceedings, 107; Curtis Com., § 178; Freeman Judg., § 94. The author last named says: "The writ of error coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication, made while some fact existed which if before the court would have prevented the rendition of the judgment, and which without any fault or negligence of the party was not presented to the court." It is suggested in the argument of the counsel for the State that even at common law the writ coram nobis had fallen into disuse in criminal cases, and should not be regarded as part of the commonlaw procedure. All of the cases which discuss the question treat the rule as correctly laid down in the books of practice, and they all agree in declaring it applicable to criminal as well as civil cases. In the celebrated and bitterly contested case of Regina v. O'Connell, 7 Irish Law, 261, note 357, the writ was allowed, and no question made as to the right of the accused to demand it. The case was carried by appeal to the House of Lords, where after a stubborn fight, the judgment of the Irish court was reversed; but no doubt was intimated as to the right of Daniel O'Connell and his associates to sue out the writ. O'Connell v. Regina, 11 Cl. & F. 155, opinion, Sanders v. State. p. 252. In United States v. Plumer, supra, Judge CLIFFORD examined the authorities with care, and held that the writ would lie in criminal as well as in civil cases (vide opinion, p. 59). It is true that the writ was denied in that case, not however because it was not a proper procedure in a court of competent jurisdiction, but because the court to which the application was made had no jurisdiction at all in criminal cases. In Adler v. State, supra, the writ was held to lie in a case in some of its features remarkably like the present. But we will not extend the discussion by commenting on the cases. A somewhat careful and full investigation has enabled us to find many cases affirming the right to the writ in both civil and criminal cases, where there is no statute abolishing or superseding it, but none denying that it exists at common law and in jurisdictions where there is no overruling statute. It is held in well considered cases, that although there is a statute regulating proceedings in criminal cases, the writ is not abolished unless the statute expressly or by implication abrogates it or supplants it by some other remedy. This is so held with respect to writs coram nobis, by MARSHALL, C. J., in Strode v. Stafford, supra, and it is so held in Cooke, Petitioner, 15 Pick. 234. In speaking of the claim that the writ coram nobis cannot exist under the statute, CowEN, J., said, in Smith v. Kingsley, 19 Wend. 620: "There is no statute expressly and in terms repealing its power, nor any which does so by necessary implication. Mere silence or omission to regulate proceedings upon such a writ will not operate as a repeal. The power therefore remains as at common law, except as to the mere form coram nobis resident; because the fiction of the record remaining before the king himself is gone. We therefore have lost the name of the writ, but nothing more. Bennett, 16 Wend. 48." This doctrine is in harmony with the well established principle that the statutory procedure blends with that of the common law. Mr. Bishop says: "The statute must be construed by the common law and in harmony with it, and by the common law must its defects be supplied." Statutory Crimes, § 366; Bishop Written Laws, § 142. This author also quotes with approval from our own case of Walker v. State, 23 Ind. 61, saying: Again, where the common-law procedure has been to a greater or less extent superseded by statutes, the old rules are,' as observed in an Indiana case, 'continued in force, not inconsistent with the Criminal Code, and so far as they may operate in aid thereof."" 66 Camp v. Sanders v. State. There are many instances in which our court has resorted to common-law methods of procedure where the statute is silent on the subject. Marcus v. State, 26 Ind. 101; Bell v. State, 42 id. 335; Hardin v. State, 22 id. 347; State v. Berdetta, 73 id. 185; s. c., 38 Am. Rep. 117; Wall v. State, 23 Ind. 150; Burk v. State, 27 id. 430. But it is useless to multiply citations; there are comparatively few criminal cases that do not contain some reference to common-law principles. What for instance would be our situation upon the question of self-defense, if we could not look beyond our statute to ascertain what it is, and what the procedure is in cases where it is an essential element? In civil proceedings the rule is firmly settled that there are cases where relief will be granted, although there is no specific remedy provided by statute. Bigelow Frauds, 170; 3 Whart. Crim. Law, 3222; Freeman Judg., § 99; Dobson v. Pearce, 12 N. Y. 156; Molyneux v. Huey, 81 N. C. 106; Jarman v. Saunders, 64 id. 367; Huggins v. King, 3 Barb. 616; Stone v. Lewman, 28 Ind. 97; Johnson's Admr's v. Unversaw, 30 id. 435; Nealis v. Dicks, 72 id. 374. That courts possess inherent powers not derived from any statute is undeniably true. Among these powers are the right to correct their records so as to make them speak the truth, to pass upon the constitutionality of statutes, to prevent the abuse of their authority or process, and to enforce obedience to their mandates. If it were granted that courts possess only such rights and powers as are conferred by statute, they would be mere creatures of the legislature, and not independent departments of the government. They are not mere creatures of the legislature, but are co-ordinate branches of the government, and in their sphere not subject to legislative control. Deutschman v. Town of Charlestown, 40 Ind. 449; Cooley Const. Lim. 114, 116; 2 Story Const. 377. - the motion for a new very materially abridge These afford an accused It is our opinion that the courts have the power to issue writs in the nature of the writ coram nobis, but that the writ can not be so comprehensive as at common law, for remedies are given by our statute which did not exist at common law trial and the right of appeal - and these the office and functions of the old writ. ample opportunity to present for review questions of fact, arising upon or prior to the trial, as well as questions of law; while at common law the writ of error allowed him to present to the appellate court only questions of law. Under our system all matters of Sanders v. State. fact reviewable by appeal, or upon motion, must be presented by motion for a new trial, and cannot be made the grounds of an application for the writ coram nobis. Within this rule must fall the defense of insanity as well as all other defenses existing at the time of the commission of the crime. Within this rule, too, must fall all cases of accident and surprise, of verdicts against evidence. of newly discovered evidence, and all like matters. Duress not only avoids all acts, but it also relieves from responsibility for crime. 1 Archb. Crim. Pr. 52; 1 Hale P. C. 56; 1 East P. C. 70. Necessity justifies many things as against an accused: it justifies the discharge of a jury, although the trial has been duly entered on, because of the illness of a judge or juror; it dispenses with essential averments in indictments. 1 Bish. Crim. Proc. 493; Bescher v. State, 32 Ind. 480; Mixon v. State, 55 Ala. 129; s. c.. 28 Am. Rep. 695. In Commonwealth v. Jailer, elc., 7 Watts, 366, a prisoner applied for a discharge under the provisions of a statute which entitled an accused to a trial or discharge at the second term of the court after his arrest. He had been afflicted with smallpox, and was recovering, but as the report says, "his aspect was so loathsome as to spread a general panic." The application for a discharge was refused, the court saying: "There is no doubt that necessity. either moral or physical, may raise an invariable exception to the letter of the habeas corpus act. A court is not bound to peril life in an attempt to perform what was not intended to be required of it." If, as against an accused, the government may invoke the doctrine of necessity and compulsion, may it not be invoked by him for the purpose of relieving himself from a plea wrung from him by fear of immediate and violent death? The assistance asked does not go to the extent of discharging without a trial, but the appeal is for relief from a plea of confession and for the award of an opportunity for trial. The application of the appellant brings to the knowledge of the court a fact, which if known would have prevented a conviction; and all the cases agree that where a new fact is suggested which would have prevented judgment, the accused is entitled to the writ coram nobis. We cannot conceive it possible — possible, we mean, in a legal sense, and under legal principles that a court, with knowledge that a plea of guilty is forced from a prisoner by fear of death, would imprison him for life without a hearing or trial. Duress is a species of fraud. Mr. Bishop says: "The common Sanders v. State. law doctrine is familiar, that fraud vitiates every transaction into which it enters." 1 Bish. Crim. Law, 1008. 1 Bish. Crim. Law, 1008. It is a principle of wide application, that a judgment obtained by fraud may be annulled. The fraud however must be as to some act in securing jurisdiction, or as to something done concerning the trial or the judicial proceedings themselves; the rule has no application to cases of fraud in the transaction, or matters connected with it, out of which the legal controversy arose. Bigelow thus states the rule: "The fraud referred to must consist either in facts relating to the manner of obtaining jurisdiction of the cause, to the mode of conducting the trial, or to the concoction of the judgment, or in facts not actually or necessarily in issue at the former trial." Bigelow Frauds, 170. "Fraud," said DEGREY, C. J., in Rex v. Duchess of Kingston, 20 How. St. Trials, 355, 544, "is an extrinsic, collateral act; which vitiates the most solemn proceedings of courts of justice. Lord COKE says, it avoids all judicial acts, ecclesiastical or temporal." There is indeed no diversity of opinion as to the effect of the fraud, for it is agreed on all sides, as stated by Mr. Freeman, in speaking of judgments, that "upon proof of fraud or collusion in their procurement they may be vacated at any time." While there is entire harmony upon this point, there is some diversity of opinion as to whether a judgment can be collaterally impeached for fraud. Freeman Judg., §§ 99, 132; Wiley v. Pavey, 61 Ind. 457. In his discussion of this subject Mr. Bishop says: "In criminal cases, there is no question, that when fraud is practiced at the trial by the prosecutor, producing a conviction, a new trial will be granted on the prayer of the defendant." 1 Bish. Crim. Law, § 1009. As against the accused the rule goes much further, for it is held that if the judgment of acquittal is obtained through his fraud it is an absolute nullity. 1 Archb. Crim. Pr. 352, cases cited in n; 1 Whart. Crim. Law, § 546; 1 Bish. Crim. Pr. 352, cases cited in n; 1 Bish. Crim. Law, § 1010; 3 Whart. Crim. Law, § 3222; Commonwealth v. Dascom, 111 Mass. 404; Commonwealth v. Alderman, 4 id. 477; Halloran v. State, 80 Ind. 586; Watkins v. State, 68 id. 427; s. c., 34 Am. Rep. 273. In the case under consideration the fraud, it is true, is not that of the prosecutor, but it is such a fraud as deprived the appellant of the constitutional right to a fair trial by an impartial jury, and surely this entitles him to some relief, and under the elementary maxim that "there is no right without, a remedy," there |