"That on the 8 day of September, 1958, this court entered a judgment and sentence on two separate counts of armed robbery against this defendant; that the defendant appeared before this court, waived a jury, time within which to plead, and entered a plea of guilty to the charges as set forth in the information.

"That at the time this defendant entered his plea of guilty to these charges, he was an incompetent person and was so adjudged by the County Court of Oklahoma County, State of Oklahoma on the 18 day of January, 1958, and that at such time he was committed to the State Institution for the Insane at Norman, Oklahoma, under an emergency order; that a hearing was duly had, doctors were present, and this defendant was diagnosed as suffering from manic-depressive manner of such violent nature as to require his confinement during mental examination, and prior to the hearing on his commitment.

"That said defendant has never regained his sanity or been judicially restored to capacity, and in fact has been since the time of said commitment, to and including the date of the judgment and sentence in this case, an insane person incapable of commission of crime as defined in Title 21, Sec. 152 [21-152] O.S.A. 1951, and further was incapable of preparing or assisting in the preparation and defense of the crimes for which a judgment and sentence have been entered herein.

"That at the time this judgment and sentence were entered, he had no realization, or presence of mind of the fact that he was pleading guilty to the charges of armed robbery; that his attorney of record at that time had no knowledge or record that this defendant was an insane and incompetent person and had been so adjudged.

"That at the time this judgment and sentence was entered, the fact of this defendant's incompetency and insanity were not made known to this court and if said fact had been made known to this court, judgment and sentence would not have been passed upon him. That this error which has been committed is not the fault of this court as the court was not advised of this defendant's insanity or incompetency. That had the court been advised of this defendant's incompetency this error would not have been committed and the court, if it had been so advised, could have relied upon the statutory provisions of Title 12, Sec. 385, Subdiv. 1:

"`Persons Incompetent To Testify.

"`Persons of unsound mind at the time of production for examination.'

"That this defendant was a witness against himself at the time he pled guilty and the judgment and sentence was pronounced by this court; that he was an incompetent person incapable of testifying against himself and had no knowledge or realization of the consequence of his actions.

"That there is no statutory remedy at law available to this defendant for correction of errors of fact occurring at his trial.

"Wherefore, defendant prays that this court issue an order setting this cause for hearing on a day certain, and that upon a hearing thereof this court grant a Writ of Error Coram Nobis for the correction of errors of fact unknown to this court and defendant's attorney at the time of the trial of the above cause, and that the judgment and sentence entered herein in Cause No. 25151 & 25152, entitled State of Oklahoma v. Robert Lee Morris, be set aside and held for naught."

"Q. Would you relate, as near as you can, the conversation that you had with the defendant — the petitioner — briefly — previous to the date he plead guilty? A. Yes. We were getting ready. It was already set up for the September, 1958 trial docket. And he had been arraigned some time earlier in the month of August, as I remember it. In the district court. And two cases of armed robbery were pending here. One was, he was charged with robbing Connie's Prescription Shop, which is supposed to have happened some time in July, 1958; and, the other one — he was charged jointly, I believe, with another fellow — Anyway, there was another fellow brought into it, I believe, and charged with robbing the Indiana Drug, at 10th and Indiana, which is alleged to have happened in the month of June — before this Connie's Prescription Shop robbery. There was a great deal of investigation going on, principally in Canadian county by John Whalen, county attorney over there, in the death of a girl — Kay Buchannan — with whom this defendant — this petitioner — had been associated.

"My conversation with him — the petitioner — one was surrounding the death of this Kay Buchannan girl; and the other, of course, to get acquainted with the defendant — and to see what they wanted to do about these cases.

"The petitioner had previously given written statements, I believe, on three different occasions, to the officers here, concerning the Connie Prescription Shop robbery.

"He recounted the whole story in detail concerning the Connie Prescription Shop robbery; but I did not talk to him in such detail about the Indiana Drug robbery.

"But he told me, that on this July 10th — or whatever the date was — that he and this Kay Buchannan that he described as a girl friend — he was more or less in love with her — or expressed a feeling of affection for her — she was a prostitute and narcotic addict — that he was living with her — and I believe that he used the words, `shacked up with her' — and that she suggested robbing Connie's Prescription Shop, just a day or two before the robbery, and he went with her and she drove the car and parked by a filling station and he told me what station, but I do not recall it, and that she remained in the car, and he went out to the prescription shop, with a pistol, and robbed them of narcotics and I believe money. I remember, `narcotics'. I believe he said he had the people lie down on the floor. He stepped over the counter himself. There are some details I do not remember.

"I remember that he had one of the men there put the narcotics in a box. He was after the hard stuff. Opium derivitives.

"Another thing he told me — he said he did not think he was hooked himself. That he had too much time in prison to stay here. But that he did use it.

"He told me about the robbery in detail and about his participation in detail and he said, `I got in the car and went to a hotel down in the south part of town' — I believe he said, where they were living and stayed there a while. Went to EIReno by way of Chickasha and there in a motel on the highway — the Rancho Motel — something like that — and while there some people by the name of Ball came over — a girl and a fellow with them, came over. And they were there for a while. I remember he told me that the narcotics, out of the Connie's Prescription Shop, had been wired underneath his car. And at this motel in EIReno he and Kay Buchannan — I remember he called it — were shooting the narcotics. That Kay took an overdose — he had a term for that too — but I do not recall just what it was. That he, at one time, himself took an overdose. He told me about the Ball boys walking him up and down the road to get him on his feet.

"He told me about finding Kay Buchannan in bed there with an overdose and I believe they gave her artificial respiration, and someone else helped him. Some of the other people.

"And I remember that he told me that Kay Buchannan — that he woke her up to help him find the vein and she helped him find the vein and shoot himself and they were all pretty well sedated with this stuff.

"And they had told Kay not to take any more and after she had helped him find the vein in his arm he told her to go ahead and use what she wanted to and he went to sleep and woke next morning and tried to arouse her to help find the vein in his arm to take another jolt; and, I believe, at that time he found that she had expired. I am not right sure whether that is the time he found she had expired or whether he found her short of breath and gave artificial respiration to her. Anyway, she expired.

"And they took her out and buried her and later on, he took the officers out there and had gone out with them and they dug her up.

"I talked with him at quite some length after that just about narcotics and things in general. I remember it was like talking to a medical doctor — a brilliant man. He could talk medicine and narcotics and particularly narcotics and psychiarty. You would be surprised at his understanding and grasp of those things. I do not know how he got himself in all this mess or talked himself into it, but he had a great grasp of any subject I talked to him about.

"Q. Would you relate whether or not he had ever been treated for narcotics? A. Yes, and again I cannot state specifically as to what he said other than he had psychologists or psychiatrists attempt to — I do not remember the conversation — but I think I understood he had been out somewhere possibly for treatment.

"Q. In your conversation with him and observing his demeanor and manner and conversations would you have an opinion as to whether or not he was rational or irrational?

"By Mr. Rinehart: If the court please, we object to that. As to a medical opinion. This man is not properly qualified.

"By the Court: He asked him if he had an opinion as to whether he was rational or irrational.

"By Mr. Rinehart: He would not be qualified as an expert in medicine.

"By the Court: It will be sustained.

"Q. Did you have any conversation with the defendant in this case as to what plea the county attorney would accept if he plead guilty? On the two charges of armed robbery? A. Yes, I believe I did. Now, most of the specific conversation concerning that was with his attorney. However, some of this was discussed with him on that occasion. And I believe that I told him that I was going to recommend 25 years.

"Q. What did he say to that? If anything? A. Well, he wanted to do a little better than that. Wondered if I could do a little better than that.

"Q. Did he give you why he wanted — A. Well, he had it pretty well figured out. How much time it would take him to do it, and he wanted to get out by the time he was a certain age. I have forgotten what that was. Forty-eight years old, I believe. Naturally, he wanted to do as little time as possible.

"Q. What did you tell him, and what did you agree upon. A. I don't believe I —

"Q. If anything? A. — left any definite answer with him of any lesser time, and again, it has been quite a while and I cannot state any time I agreed with him or his attorney both. At that time it was with his attorney, I remember. I told him I would recommend 20 years and that is what we finally gave him.

"Q. Did you have any conversation with the petitioner that he had a right to go before a jury; or whether or not he wanted to do that? A. Yes, sir. I told him I didn't have any idea of getting him to plead to anything. That I didn't care whether he did or not. That he could plead or not plead. That he had a right to a trial and I would be glad to give him one. Two, as a matter of fact. I just had him there to talk about the thing and see if we could clear up the matter of Kay Buchannan's death over at ElReno.

"Q. Did he indicate or not whether he wanted a jury trial? A. No, he didn't want a jury trial. He said that he had told the officers what he had done. In fact the evidence was against him and he didn't see any point in facing a trial.

"Q. Did you later talk to defendant's counsel? Do you recall who the defendant's counsel was? A. Yes, in fact I talked with two different ones. They are associated, or were at the time, in the practice of law. John H. Lawrence and M.W. Cooper.

"Q. Do you recall how many times you talked with counsel for the defendant? A. Oh, I couldn't be exact. I think I could say somewhere from 2, 3, 4 or 5 times perhaps. There were several occasions when we did not go into detail — but we had at least 2 or 3 — 3 I would say — serious conferences.

"Q. Do you recall the substance of conversations you had with counsel? A. Not in detail. Other than they did not see any point in going to trial. They didn't want to go to trial. They wanted to do the best they could for the defendant without a trial. I believe, in our conversations, that this defendant was a kinsman of one of them. I believe he was a nephew of M.W. Cooper.

"Q. Did they indicate to you that they had talked to the defendant? Or anything about they wanted you to recommend a — A. Yes. They were definitely feeling that was to the best interest of their client all the time. And they told me they had thought it over and talked it over and, in their opinion, the best thing to do was for him to enter his plea of guilty, and if he agreed with them, that is what they would do. I finally agreed on that figure — 20 years — and they said, `Well, that's a lot of time. That's pretty stiff.' and I said, `Yes, sir, and it takes a lot of guts to stand up in front of the court and take that amount of time and I'm not telling you to take it and I do not care whether you do or not. I had just as soon have him go to trial, because if there was ever a case made where an individual was entitled to be tried this was the case.' He had quite a sorry record and with a record like that he was reluctant to go to trial and counsel was reluctant to let him go to trial.

"Q. No further questions. You may inquire.

"Cross-Examination

"By Mr. Rinehart: Q. Mr. Theus, I want to call your attention to petitioner's exhibits. Defendant's exhibits 1, 2 and 3. And ask you if you had ever seen them before the filing of this writ? A. No, I had not seen them before that. However, this is the commitment —

"Q. Yes, that is correct. It is my understanding then that you knew nothing about it at the time of this commitment at Norman, Oklahoma, January 18, 1958? A. No, and I didn't suspect anything wrong with it —

"Q. That wasn't the question I asked you. You knew nothing about it and they never told you about it? A. No.

"Q. During the conversations you had with the defendant here, when the cases were pending, was that in the presence of Major Cooper, as counsel? A. I am not certain that it was. I am not able to say whether it was or not. My present impression is that maybe Major was not there.

"Q. During these discussions about this woman's death — is that when you talked to him about taking pleas? Is that my understanding of your testimony? A. Well, the death of this woman — there was a continuation of that for a day or two — and the narcotics they got in this Connie's robbery, and his statements — that was before the major consideration, concerning his plea, which were with his counsel. I do think there was some discussion of it, however, with the defendant while he was there.

"Q. About how long did you talk to this defendant, oh, over a period of a week, or two weeks, or whenever you discussed it? And how long? A. I do not recall specifically how many times I talked to him. One time, that I recall specifically, I would say an hour or more, about which I have previously testified.

"Q. About how long — over the period of time you were concerned in the case, did you talk to him, with his counsel or by himself? Just between you and he? A. Oh, as I recall, we had that one conversation and I cannot testify, of my knowledge, whether I talked to him any more until the day of his plea.

"Q. Well — would you say 2 hours or 3 hours over the period of time he was confined here? A. Not over that time.

"Q. And during the time of these discussions you had with him, he, at no time, mentioned about being confined at Norman. Is that correct? A. Not that I recall. I am sure that he did not.

"Q. That is all. A. I will say that I did know — I had no other way to get it other than from him — I believe he told me that he had had some psychiatric therapy.

"Q. As to the particulars — did he ever discuss that with you? A. No.

"Q. Thank you. That is all."

"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 — the motion for a new trial and the right of appeal — and these very materially abridge the office and functions of the old writ. These afford an accused 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 fact reviewable by appeal, or upon motion, must be presented by motion for a new trial, and can not 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 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." (Emphasis supplied.)