The opinion
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 .
*570
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.