
    In re TAYLOR (STATE v. TAYLOR).
    (Filed 16 June, 1949.)
    1. Criminal Law § 57d—
    The common law writ of error coram nobis to challenge the validity of. petitioner’s conviction for matters extraneous the record, is available under our procedure. G.S. 4-1.
    
      2. Same: Constitutional Law § 10d—
    The Supreme Court, in its supervisory power, has authority to entertain an application for permission to apply to the Superior Court for a writ of error coram nobis. Constitution of N. C., Art. IV, sec. 8.
    S. Constitutional Law § 34d—
    The appointment of counsel for a defendant charged with felonies less than capital is within the discretion of the trial court; but in prosecutions for capital offenses the appointment of counsel is mandatory. G.S. 15-4.
    4. Criminal Law § 57d: Constitutional Law § lOd—
    Where verified petition for leave to apply to the Superior Court for writ of error coram nobis, the record in the cases in which petitioner was convicted, and habeas corpus proceedings instituted by him, make it appear that petitioner was confronted with indictments for capital offenses and indictments for felonies less than capital, and that the trial court failed to appoint counsel to represent him notwithstanding his alleged inability to employ counsel and his request for counsel, the petition will be allowed in respect of the capital felonies and denied in respect of the felonies less than capital upon such prima facie showing.
    5. Same—
    Upon application to the Supreme Court for leave to apply to the Superior Court for writ of error coram nobis, the application will be allowed upon a prima facie showing, but the ultimate merits of petitioner’s claim are for the trial court.
    6. Criminal Law § 57d—
    If the trial court denies petitioner’s application for writ of error coram nobis it should find the facts, and petitioner should be returned to prison and be allowed to appeal as in other proceedings; if it grants the petition, the judgments should be vacated, the pleas stricken out or permitted to be withdrawn, and the cases restored to the docket for trial in accordance with law.
    OrigiNai application by Laurie D. Taylor, Jr., for leave to apply to tbe Superior Court of Pitt County for relief from judgments alleged to bave been induced by factual and constitutional defects at tbe January Term, 1947.
    Following tbe disposition of application for writ of certiorari to review judgment on habeas corpus at tbe Fall Term, 1948, reported in 229 N.C. 297, 49 S.E. 2d 749, tbe petitioner of bis own volition and inops consilii, applied to tbe District Court of tbe United States for tbe Eastern' District of North Carolina for writ of habeas corpus to test tbe legality of bis imprisonment. Tbe Federal Court dismissed bis petition on tbe ground that tbe petitioner bad not exhausted bis State remedies. Again of bis own volition and inops consilii, be filed application bere for leave to apply to tbe Superior Court of Pitt County for writes of error coram 
      
      nobis to determine the lawfulness of his present incarceration. The court referred his unverified application to J. O. B. Ehringhous, Jr., Esquire, of the Raleigh Bar, and requested that he again counsel with the petitioner and advise him of his rights. As a result, the applicant has verified his petition and insists upon its being granted. This is the course which he elected not to pursue at the last term as will appear from the reported case. He has now changed his mind in respect of the matter, or perhaps time and what he regards as a more propitious circumstance have changed it for him.
    The substance of the petition is that at the January Term, 1947, Pitt Superior Court, the petitioner, then a minor, eighteen years of age, without legal knowledge or training and inexperienced in court procedure, was required to plead to three indictments charging him with burglary in the first degree and four indictments charging him with housebreaking and larceny; that before entering pleas to the indictments the petitioner informed the trial court that he was unable to employ counsel and requested the court to appoint counsel to advise with him and to protect his rights, but-no counsel was appointed to represent him at the time; that the petitioner being apprehensive of the consequences that might result to him from a public hearing of the offenses which were alleged to have occurred only a few weeks prior thereto, entered pleas of guilty to the indictments for housebreaking and larceny, and tendered pleas of guilty of burglary in the second degree on the capital charges which were accepted by the solicitor; that the petitioner was thereupon sentenced to life imprisonment on each of the burglary indictments and to ten years in prison on each of the housebreaking and larceny charges, the sentences in all of the cases'to run concurrently, and that the petitioner is now serving his sentences in the Central Prison at Raleigh.
    It is further submitted that the disposition of the charges against the petitioner, especially the capital ones, without affording him the advice and assistance of counsel, was in violation of his constitutional and statutory rights.
    Answering the allegations of the petition, the Director of Prisons of the North Carolina Highway and Public Works Commission, concedes that the petitioner is being held in the Central Prison at Raleigh on seven commitments, three for life and four for ten years each, all running concurrently. He further alleges that while the petitioner may have been a minor at the- time of his hearing in Pitt Superior Court, he looks and acts the part of an adult; that he is at least twenty years of age, or thereabout, self-willed, familiar with the courts, and no stranger to the ways of crime, especially those of burglary, housebreaking and larceny; that respondent is informed, and the records in subsequent proceedings indicate, the petitioner was fully acquainted with the charges against him, and bis pleas were tendered and accepted only after careful consideration and counseling on tbe part of tbe trial court.
    Tbe respondent further points out that at least in tbe four non-capital indictments, tbe appointment of counsel for tbe accused was a matter resting in tbe sound discretion of tbe trial court. Wherefore, be suggests tbe propriety of dismissing tbe petition, certainly in respect of these indictments.
    
      J. C. B. Ehringhaus, Jr. (by Court appointment) for petitioner.
    
    
      Attorney-General McMullan and Assistant Attorney-General Moody for the State.
    
    
      R. Brookes Peters for State Highway/ and Public Works Commission.
    
   Stacy, O. J.

Tbe question posed is tbe sufficiency of tbe application and showing for permission to apply for writs of error coram nobis. Tbe record suggests a limited allowance.

Tbe writ of error coram nobis is an established common-law writ. 24 C.J.S. 143 et seq. It is therefore available under our procedure in a case like tbe present. G.S. 4-1; In re Taylor, 229 N.C. 297, 49 S.E. 2d 749; Roughton v. Brown, 53 N.C. 393; Williams v. Edwards, 34 N.C. 118; Lassiter v. Harper, 32 N.C. 392; Tyler v. Morris, 20 N.C. 625. See Massie v. Hainey, 165 N.C. 174, 81 S.E. 135; Roberts v. Pratt, 152 N.C. 731, 68 S.E. 240; 27 N.C.L. 254; also Young v. Ragen, .... U.S. ... , 69 S. Ct. 1073, decided June 6, 1949. Tbe instant application for permission to 'apply to tbe trial court for relief is addressed to tbe supervisory authority of this Court over “proceedings of tbe inferior courts” of tbe State. Const. Art. IV, Sec. 8; S. v. Lawrence, 81 N.C. 522; S. v. Green, 85 N.C. 600. See, also, note to Halford v. Alexander, 46 Am. Dec. 253-257.

Tbe gravamen of tbe petition is tbe factual allegation, extraneous of tbe record, that tbe petitioner was unable to employ counsel, and notwithstanding bis manifest inability to safeguard bis rights and bis request for counselor aid, tbe court failed to appoint counsel to represent him. In addition to tbe four charges of housebreaking and larceny — serious felonies within themselves, though less than capital — tbe petitioner was faced with three capital indictments of burglary in tbe first degree. G.S. 14-51.

Ordinarily, tbe appointment of counsel to represent tbe accused in cases less than capital is discretionary with the trial court. In re Taylor, 229 N.C. 297, 49 S.E. 2d 749; S. v. Hedgebeth, 228 N.C. 259, 45 S.E. 2d 563. See Gibbs v. Burke,....U.S...., 69 S. Ct. 1247, decided 27 June, 1949; Uveges v. Pa., 335 U.S. 437. It is otherwise, however, in capital cases. G.S. 15-4; S. v. Farrell, 223 N.C. 321, 26 S.E. 2d 322; Powell v. Alabama. 287 U.S. 45, 77 L. Ed. 158. 84 A.L.R. 527.

Tbe petitioner offers in support of bis allegations bis own verification and tbe record in tbe cases, together witb tbe record in tbe habeas corpus proceedings. These suffice, we think, to make a prima facie showing of substantiality. Tbe ultimate merits of tbe petitioner’s claim are not for us, but for tbe trial court. His petition for leave to apply to tbe Superior Court of Pitt County for tbe relief which be seeks will be granted in respect of tbe capital indictments. Ex parte Taylor, 249 Ala. 667, 32 So. 2d 659; S. c. (sub. nom.) Taylor v. Alabama, 335 U.S. 252; Hysler v. Florida, 146 Fla. 593„ 1 So. 2d 628; S. c., 315 U.S. 411, 86 L. Ed. 932. See Nickels v. State, 86 Fla. 208, 98 So. 502, as closely parallel in factual situation, and Chambers v. State, 117 Fla. 642, 158 So. 153, on procedure. No sufficient showing has been made to warrant tbe granting of bis application in respect of tbe non-capital indictments.

Tbe prison authorities will afford tbe petitioner an opportunity to appear at tbe next term of tbe Superior Court of Pitt County to be held for tbe trial of criminal cases, so that be may apply for writs of error coram nobis in respect of tbe three capital indictments as sought in bis petition. Before entertaining bis application, however, tbe trial court will see to it that tbe petitioner is represented by counsel, either of bis own choosing and employment, or by appointment of tbe court. If under tbe advice of counsel, tbe petitioner elect to proceed further, tbe court will entertain bis application and make decision thereon. If tbe application be denied, findings of fact should be made as a basis therefor, tbe petitioner returned to tbe Central Prison, and allowed to appeal as in other proceedings.

If tbe application be granted, tbe judgments should be vacated, tbe pleas stricken out or permitted to be withdrawn, and tbe cases restored to tbe docket for trial In this latter event, tbe petitioner will be afforded an opportunity to confer witb counsel, prepare bis defense, and appear at bis trial.

Mr. Ebringbaus is relieved of any further duty under bis appointment here. He has secured for tbe petitioner tbe privilege of applying to tbe trial court for part of tbe relief which be desires, and which be may there seek.

Petition allowed in part.  