Buckler v. State
| Decision Date | 27 May 1935 |
| Docket Number | 31629 |
| Court | Mississippi Supreme Court |
| Parties | BUCKLER v. STATE |
(En Banc.)
1. CRIMINAL LAW.
Writ of error coram nobis may be obtained after affirmance of judgment and sentence by Supreme Court.
2. CRIMINAL LAW.
Judgment of affirmance is of no higher dignity than judgment it affirmed, and petition for writ of error coram nobis may be filed, allowed, and heard in trial court as fully and with as much effect as if no appeal had been taken.
3. CRIMINAL LAW.
Since writ of error coram nobis if allowed is triable in circuit court, application must first be presented to trial judge unless he is absent from his district or is incapacitated by illness.
4. CRIMINAL LAW.
Insanity of accused at time of trial is more than a defense, since it introduces element that accused was unfit to be tried, or, if he has become insane since trial, that he is unfit to be executed.
5. CRIMINAL LAW.
Where record shows that there was no demurrer to petition for writ of error coram nobis or any joinder of issue thereon or that oral evidence was taken, and inference was that trial judge did not hear petition with jury upon contested issue of fact appeal would not lie from refusal to grant writ notwithstanding petition was presented in term and order indicated that writ had been refused after full hearing upon merits.
6. CRIMINAL LAW.
As respects right to appeal, refusal of trial judge to issue flat for writ of coram nobis is equivalent to refusal of fiat for an injunction or other remedial writ, and is not a judgment.
7. CRIMINAL LAW.
Refusal of Supreme Court to grant an appeal from trial court's refusal to grant writ of error coram nobis did not leave petitioner without further remedy, since petitioner could apply to judge of Supreme Court for such writ (Code 1930 sections 16, 742).
8. CRIMINAL LAW.
Writ of error coram nobis may be granted by judges of Supreme Court although trial judge refused to grant writ and although writ is not in aid of appellate jurisdiction of Supreme Court, since writ is remedial (Code 1930, sections 16, 742).
APPEAL from the circuit court of Washington county, HON. S. F. DAVIS, Judge.
Oliver Buckler was convicted of murder, and he appeals. Appeal dismissed.
Appeal dismissed.
G. Ramsey Russell, of Greenville, for appellant.
For the purposes of this argument, I see little cause to enter into a lengthy technical discussion of the nature and functions of the writ of error coram nobis. This ground has been very ably covered by the learned justices of this court in their decisions formerly rendered in the cases of:
Fugate v. State, 85 Miss. 94, 37 So. 554; Howie v. State, 121 Miss. 197, 83 So. 158; Carraway v. State, 163 Miss. 639, 141 So. 342; Powers v. State, 151 So. 730; White v. State, 159 Miss. 207, 131 So. 96.
Also see: 34 C. J. 393; Fellows v. Griffin, 9 S. & M. 362; Corby v. Buddendorff, 98 Miss. 98, 54 So. 84.
Coram nobis lies to reverse a judgment for an error of fact not appearing on the face of the record, which fact was unknown to the court and which, if known in season, would have prevented the rendition and entry of the judgment challenged.
Powers v. State, 151 So. 730, 168 Miss. 541.
In the light of recent decisions of this honorable court, notably the decision rendered in the Carraway case, attorneys for appellant were at the end of their legal rope. The affidavits of the responsible and credible persons, and the fact that numerous witnesses could be produced who would testify as to the insanity of the condemned man, certainly seemed to raise sufficient doubt as to his sanity to warrant appellant's attorneys in carrying the fight to the last ditch in an effort to place the evidence before a jury and give appellant a chance on this new issue which had not been raised heretofore.
I do not believe that the right to appeal should be determined by a technical consideration of the rare application or limited office of the writ, but that the judicial power should be diligent to find the remedy of appeal in regard and proportion to the right and consequences involved.
Volume VI, Number 2, The Mississippi Law Journal, pages 143, 145.
Attorney for appellant contends that, aside from the questions of legal rights already presented to this court, and aside from the considerations of the inferences and opinions surrounding and enmeshing the writ of coram nobis, this appeal could rest upon this one fact, that this was such a final judgment as contemplated by section 13 of the Code of 1930, that an appeal would lie to this court from a decision adverse to the defendant, appellant here. Even though the writ of coram nobis be considered a remedial writ, I think there can be little doubt but that the manner of its refusal in the instant case made such refusal a final judgment within the meaning of the statute.
If we are to follow the leading authorities on the question, appellant is in the position of never having had a trial. If he was insane, he should never have been placed on trial, and any trial that might have been had should be considered a nullity.
Freeman v. People, 4 Denio (N. Y.) 9, 47 Am. Dec. 216; 4 Wendell's Blackstone's Commentaries, pages 24 and 25.
W. D. Conn, Jr., Assistant Attorney-General, for the state.
The writ of error coram nobis is of common law origin, and, as we have no statute dealing with it, is governed thereby.
Carraway v. State, 163 Miss. 639, 141 So. 342; Partlow v. State, 141 N.E. 413; Davis v. State, 161 N.E. 375; Boyd v. Smith, 205 N.E. 522.
The Mississippi court, in Land v. Williams, 12 S. & M. 362, seems to have already decided that after the affirmance of a judgment, the trial court has no jurisdiction of a petition for writ of error coram nobis.
2 Strange 690; Horne v. Bushell, 2 Str. 949.
When a judgment is appealed from and that judgment is affirmed by this court, jurisdiction does not reinvest in the trial court, except to carry out the mandate of the court.
Section 3406, Code of 1930; George v. Caldwell, 89 Miss. 820, 54 So. 316; Lofton v. State, 149 Miss. 514, 115 So. 592; Partlow v. State, 144 N.E. 661.
After a term of court at which a judgment was entered has expired, the court has no jurisdiction of a motion for a new trial.
Pittman v. State, 147 Miss. 593, 113 So. 348; Carraway v. State, 167 Miss. 390, 148 So. 340; Davis v. State, 144 Miss. 551, 110 So. 447; Gibson v. State, 76 Miss. 136, 23 So. 582; Lake v. State, 135 So. 124; Strange v. U.S. 53 F.2d 820; Lamb v. State, 107 So. 535.
The writ and supersedeas, or either, do not issue as a matter or right, but, in order to obtain either, it must be made to appear to the judge to whom the application therefor is made that there is reasonable certainty of error of fact in the judgment of the character, for the correction of which the writ, or its modern equivalent will lie.
Holt v. State, 78 Miss. 631, 29 So. 527; Bennett v. State, 106 Miss. 103, 63 So. 339; 34 C. J. 400; Carraway v. State, 163 Miss. 639, 141 So. 342.
This application is signed by attorneys for petitioner and sworn to on information and belief. Attached to the petition or application are two ex parte affidavits of former landlords of appellant. They do not qualify as experts on mental diseases.
There is not one single statement in the affidavits attached to the application which would "make it appear that there is reasonable certainty of error in fact" in the judgment, upon the ground that the applicant was insane at the time of committing the crime or at the time of trial or now, to the extent that he would not know and appreciate the difference between right and wrong.
The writ of error coram nobis does not lie to obtain a new trial.
White v. State, 131 So. 96; Powers v. State, 151 So. 730.
If the application for a writ of error coram nobis in this case be treated as a motion to set aside a judgment, then it may be observed that the averments of a motion are not proof thereof, and that a motion is at issue without further pleading, and it devolves upon the movant to sustain the, allegations of his motion with proof.
Read v. State, 109 So. 715; Young v. State, 150 Miss. 787, 117 So. 119.
The record contains no proof to support the application, nor does it show that any proof was offered.
Appellant was indicted, tried, and convicted of murder, and on appeal the judgment and sentence was affirmed, Buckler v. State, 171 Miss. 353, 157 So. 353. After affirmance and before the day of execution, appellant, through his attorneys, presented his petition, to the trial judge, but during term time, for a writ of error coram nobis, alleging therein that he was insane at the time of the trial and has been insane at all times before and since. This petition was supported by the affidavits of the attorneys appointed by the court, who state in their affidavits that they did not know of the insanity at the time of the trial and were not negligent in that respect. The petition was supported also by the affidavits of two persons who had known appellant for a number of years. The trial judge declined to order the issuance of the writ and to stay the execution, and appellant's attorneys presented to a judge of this court an application for an appeal therefrom. The judge here being under the impression that the circuit court in term time had heard the application on its merits, after issue made up, granted an appeal with an order for the stay of the execution.
The chief contention made by the state is that a writ of coram nobis is not available after affirmance of the judgment and...
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