Carraway v. State

• Decision Date: 22 May 1933
• Docket Number: 30461
• Citation: 148 So. 340,167 Miss. 390
• Court: Mississippi Supreme Court
• Parties: CARRAWAY v. STATE

148 So. 340

167 Miss. 390

CARRAWAY v. STATE

No. 30461

Supreme Court of Mississippi

May 22, 1933

Suggestion Of Error Overruled June 12, 1933.

(In Banc.)

1. CRIMINAL LAW.

Accused's attorney must be charged with accused's knowledge, or at least accused cannot plead failure to disclose to his attorney all pertinent facts in connection with the charge.

2. CRIMINAL LAW.

There is no ground for new trial when all facts beneficial to accused's interest were well known to him.

3. CRIMINAL LAW.

Overruling motion for new trial on ground that witness on the opposite side testified to something not testified to on the committing trial is not error.

4. CRIMINAL LAW.

New trial will not be granted where alleged injustice in verdict was result of negligence of accused or his counsel.

5. CRIMINAL LAW.

Where accused knew what happened at interview with officers evidence that testimony given on trial did not accord with facts held not newly discovered evidence authorizing new trial.

6. CRIMINAL LAW.

Accused asking for new trial for newly discovered evidence must satisfy court that evidence has come to his knowledge since trial, that it could not have been discovered sooner by diligence, and that such evidence would probably produce different result, if new trial should be granted.

7. CRIMINAL LAW.

Newly discovered evidence which is merely cumulative, or simply tends to impeach testimony of one of several witnesses is not ground for new trial.

8. CRIMINAL LAW.

Where matter has been presented by issues during trial, and party neglects to present all evidence at his command, case cannot be tried on motion for new trial or writ of error coram nobis.

9. CRIMINAL LAW.

That a witness changes his testimony after the trial is ended is no ground for new trial.

GRIFFITH J., dissenting.

HON. W A. WHITE, Judge.

APPEAL from circuit court of Jackson county HON. W. A. WHITE, Judge.

Tom Carraway, convicted of rape, appeals from denial of motion for new trial. Affirmed.

Affirmed.

Powell, Harper & Jiggitts, of Jackson, for appellant.

A motion for a new trial in a criminal case on the ground of newly discovered evidence must be made in a trial court.

State v. Lilliston, 141 N.C. 857, 54 S.E. 427; State v. Arthur, 151 N.C. 853, 65 S.E. 758; State v. Sallisbury Ice, etc., Co., 166 N.C. 403, 52 L. R. A. (N. S.) at page 219; 20 R. C. L., page 290, Section 72.

Newly discovered evidence is a ground for a new trial.

20 R. C. L., page 290, Section 72.

Where a material witness admits under oath that his testimony was mistaken or false, a new trial has, in a number of cases, been granted.

20 R. C. L., page 299, Section 80; Myers v. State, 111 Ark. 399; Peagram v. King, 9 N.C. 605, 11 Am. Dec. 793; Bussey v. State, 69 Ark. 545, 64 S.W. 261; State v. Moberly, 121 Mo. 604, 26 S.W. 364; Piper v. State, 57 Tex. Crim. Rep. 605; Great Falls Mfg. Co. v. Mathes, 5 N.H. 574; Benda v. Keil, 34 Misc. 396, 69 N.Y.S. 655; State v. Foster, 59 N.W. 8.

Bidwell Adam, of Gulfport, for appellant.

Appellant, in asking for that full measure of justice that he, in common with all mankind is entitled to receive, comes before this high tribunal that so rightly and justly weighs in the balance of Justice the merits of every man's case, and asks that the same rule, law and yardstick used in all other cases be applied to all the facts, circumstances and conditions surrounding this case that now wraps him in the mantle of death. He wishes for nothing more; he should receive nothing less.

The right to a review of this record and the horrible tragedy perpetrated in the name of law is fundamental, sacred and holy.

This same district attorney that elicited and brought from the witness Wentzell the damaging confession that doomed appellant's chances--what does he say? Does this same man say that appellant confessed to him and Wentzell? Does he fasten the confession with a hangman's skill around appellant's neck when sworn and called upon to testify? No, he does not.

When the district attorney placed Wentzell on the stand as a state witness, and himself drew out of the witness the testimony that the appellant had confessed to them both, the effect upon the jury was exactly the same as though the district attorney had testified. This not only deceived the jury, but it completely disarmed the defending attorney, who naturally assumed that the district attorney would testify to the same facts, or he otherwise would not have introduced Wentzell to do so as a state witness in a capital case.

S. D. Redmond, of Jackson, for appellant.

False testimony! confessedly false testimony! knowingly false testimony! has consigned this youth to his untimely doom. We can reach no other conclusion, and for this judgment to be permitted to stand would constitute one of the most outstanding judicial mistakes of the times.

The appellant is entitled to a new trial.

Bates v. State (Miss.), 32 So. 915; Myers v. State, 111 Ark. 399; Bob Piper v. State, 59 Tex. Crim.; Pegram v. King and King, 9 N.C. 605; O'Hara v. Brooklyn Heights Ry. Co., 102 A.D. 398, 92 N.Y.S. 777; Chapman v. Delaware, etc., R. R. Co., 102 A.D. 176,

Where a material witness testifies falsely that is held to be grounds for a new trial.

Seward v. Cease, 50, Ill. 228; Hewitt v. Heiter, 39 Ill.App. 585; Nudd v. Hain Ins. Co., 25 Minn. 100; Russell v. Dyer, 39 N.H. 528; Struthers v. Wagner, 6 Phila. (Pa.) 262; England-Fabilins v. Cock, 3 Burr 1771; Cardington v. Webb, 2 Vern. Ch. 240, 23 Eng. Reprint 755, 37 Cent. Dig., tit. N. T. 183.

Where a counsel for the state has been guilty of conduct calculated to arouse prejudice against defendant, and to prevent him from having a fair trial, a conviction will be set aside.

Hager v. State, 10 Okla. Cr. 9, 133 P. 263; 16 C. J. 1141, Sec. 2641; State v. Beuge, 61 Iowa 658, 17 N.W. 100; State v. Jones, 12 Mo.App. 93 (Aff. 79 Mo. 441); State v. Swayze, 30 La. Ann. 1323; Reper v. Teir, 7 N. M. 255, 33 P. 1014.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

It is true that some courts have held that where a material witness admits under oath that his testimony was mistaken or false, a new trial will, under certain circumstances, be granted. No Mississippi cases are cited in support of this contention and I dare say none exist, else counsel would have cited them to the court.

The only decision of this court which the writer of this brief has been able to find which touches upon this general proposition is the case of Cummins v. State, 110 So. 206, 144 Miss. 634.

It might be well enough to observe here that the motion to vacate the judgment in this case and grant a new trial is, in substance, the same as a petition for a writ of error coram nobis. There is little, if any, distinction between the two pleadings and what may be said of one may be said of the other. If the law laid down in Cummins v. State, supra, is still the law in the State of Mississippi, then I submit that it was proper to overrule this motion for a new trial.

Argued orally by Louis M. Jiggitts and Bidwell Adam, for appellant, and by W. D. Conn, Jr., for the state.

Ethridge, J., GRIFFITH, J., dissenting.

OPINION

Ethridge, J.

The appellant was heretofore convicted of rape and sentenced to death, and the judgment of conviction was affirmed. 137 So. 325. After the affirmance of the case, a petition for a writ of coram nobis was sued out before the judge in vacation, and the judge declined to grant it. An appeal from the refusal of the judge to grant this writ was prosecuted here which appeal was dismissed on the ground that no appeal lay from the refusal of the judge to grant the writ in vacation. This is reported in 163 Miss. 639, 141 So. 342. Thereafter, the present motion for a new trial was made in the circuit court and was heard in term time, which motion was denied, from which denial this appeal is prosecuted.

The motion to set aside the verdict and grant a new trial was based upon facts, or alleged facts, which were fully known to the appellant prior to the time of the trial on the merits. The petition set up as a ground for not bringing these matters to the attention of the court at the trial on the merits that he feared mob violence.

We think the record wholly fails to sustain any allegation that there was any danger of mob violence, and the record shows that during the trial on the merits there were no persons present in the courthouse other than the officers of the court, counsel for parties, juries, witnesses, and the defendant, appellant here. The appellant was defended, on the trial on the merits, by an attorney of his own selection, and this attorney states that he did not disclose to the trial court any information of any threat of mob violence; that he did not make a motion for a change of venue or for a continuance on this, or on any other ground, and that he did not ask for compulsory process to secure the attendance of two witnesses who, had been summoned, and the process for whom had been returned "not found"; nor make any application for a continuance because of their absence. He says he stated to the district attorney, when asked if he was ready for trial, that he had two material witnesses, and that the district attorney stated to him that, in his opinion, it would be better to go to trial without them than for the trial to be delayed. The two alleged witnesses who were absent, and for whom process had been returned "not found," were not introduced in the present trial, nor upon the motion for a new trial after conviction, nor was there any showing as to what said witnesses would testify to except that they would support three other witnesses as to an alibi on behalf of the appellant, the said three other witnesses having...