Bennett v. State

• Decision Date: 17 November 1913
• Docket Number: 17,066
• Citation: 106 Miss. 103,63 So. 339
• Court: Mississippi Supreme Court
• Parties: JAMES G. BENNETT v. STATE

63 So. 339

106 Miss. 103

JAMES G. BENNETT v. STATE

No. 17,066

Supreme Court of Mississippi

November 17, 1913

APPEAL from the circuit court of Yazoo county, HON. W. A. HENRY Judge.

James G. Bennett having been convicted of bigamy, filed a writ of error coram nobis, and from an order denying the writ appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

A. A Hammond, attorney for appellant.

In the case of Fugate v. State, 85 Miss. 94, Judge WHITFIELD said, while chief justice, that the writ of coram nobis applied to both civil and criminal cases in Mississippi, and that where a proper case was made out any judgment would be recalled and a new trial awarded. However in that case, the court held that the case then before the court did not warrant the remedy because the facts did not show that the appellant was entitled to the writ. This case is now before this court, not as a new case, but simply in an effort to reopen the old case. The meaning of the words that describe this writ being translated is "before you," hence this is still before the supreme court on appeal just as it was before the trial court on the original petition.

In the Fugate case, the court very properly held that the writ could not issue, and that the circuit judge was not in error. I concur in the opinion there; there was nothing in that case to warrant the remedy; there was nothing in the case to show that the applicant was entitled to the remedy, because he did not ask it on facts that were unknown to the trial court at the time the sentence was imposed; they asked it upon a matter already adjudicated by the trial court; whereas, in this case, we have the evidence of the trial court that he knew nothing of this nor of these facts until the hearing at Jackson. He goes further than any trial judge on record in a case of this character, and takes the witness stand to testify that he never "heard of it until now" meaning time of hearing. Hence we see that we come upon the grounds for which the writ was intended to furnish relief; viz: some fact existing at the time of the trial which was unknown to the trial judge, but which if it had been known would have prevented the judgment from being entered. It will be remembered that in the order denying the writ, the learned trial judge said that the "writ cannot issue as a matter of law;" in this he is certainly in error, because as a matter of law it cannot be denied where a case entitling the appellant to the remedy is made out. Fugate v. State, 85 Miss. 94. "It is not a writ of right, but will always be granted where errors of fact are shown to exist." 5 Ency. Pleading & Practice, 32; Highby v. Comstock, 1 Den. (N. Y.) 652.

It being a settled question of law in this state settled by the decision in this court in the Fugate case, supra it will not be necessary for me to cite authorities to sustain my contention that the writ applies to both civil and criminal cases where a proper showing is made, but if the court desires authority in this, I respectfully cite the cases of Holford v. Alexander, 46 Amer. Dec. 257-261; State v. Calhoun, 32 P. Rep. (Kan.) 38; Sanders v. State, 85 Ind. 318; Adler v. State, 35 Ark. 522; Powell v. Gott, 13 Mo. 458; Latshaw v. McNees, 50 Mo. 381.

Frank Johnston, assistant attorney-general, for the state.

The first proposition that I submit to the court is, that on the peculiar facts of this case, this court on appeal ought not to disturb the decision and the judication of the trial court unless there appears in the record some manifest abuse of power, or unless his action is clearly and manifestly against common right and justice in the case.

The universal doctrine in respect to the writ of error coram nobis from the origin of the writ down to the present time is that it is not strictissimi juris a writ of right, but the meaning of the writ is largely within the discretion of the court. 5 Ency. Pleadings and Practice, 32. This rule is announced expressly in the following cases: Tyler v. Morris, 4 Dev. & B. (N. Car.), 487, 34 Am. Dec. 395; Higbie v. Comstock, 1 Den. (N. Y.) 652; Camp v. Kingsley, 19 Wend. (N. Y.) 620. If an error of fact is shown to exist in a proceeding in the trial court dehors the record, which would render the judgment invalid, the usual practice is to grant the writ of coram nobis. As illustrative of this, I refer the court of the case of Higbie v. Comstock, 1 Den. (N. Y.) 652.

Of course, if the error, either of law or fact, is shown on the face of the record, the writ of error was the proper mode of procedure, and excluded the writ of error coram nobis. But the doctrine is true that the writ is not a writ of right, but in stating this rule, I simply state the proposition that the ground of the writ is largely within the discretion of the court. I call special attention of the court to the fact in this case that there is not an error of law or fact appearing in the record of the trial of this case. The whole case was viewed by this honorable court on a writ of error and was affirmed.

The grounds upon which this writ is asked in pais, except in this, that the grounds of defense for this writ were all available on the trial of the case. We must, therefore consider...