Goldsby v. State, 39739

• Decision Date: 05 March 1956
• Docket Number: No. 39739,39739
• Citation: 226 Miss. 1,86 So.2d 27
• Parties: Robert Lee GOLDSBY v. STATE.
• Court: Mississippi Supreme Court

Page 27

86 So.2d 27

226 Miss. 1

Robert Lee GOLDSBY v. STATE.

No. 39739.

Supreme Court of Mississippi.

March 5, 1956.

George N. Leighton, Chicago, Ill., for appellant.

Joe T. Patterson, Atty. Gen., for appellee.

HALL, Justice.

The appellant, Robert Lee Goldsby, was convicted of murder in the Circuit Court of Carroll County, Mississippi, at the November 1954 term. On appeal to this Court his conviction was affirmed on March 28, 1955. Goldsby v. State, Miss., 78 So.2d 762, not yet reported in the State Reports. Thereafter he petitioned the United States Supreme Court for a writ of certiorari, and the prayer of his petition was denied on December 12, 1955. 350 U.S. 925, 76 S.Ct. 216, 100 L.Ed. ----. On January 16, 1956, this Court fixed the date of his execution for February 24, 1956. Goldsby v. State, Miss., 84 So.2d 528.

On February 21, 1956, the appellant Goldsby filed in this Court pursuant to Chapter 250, pages 281-282, Laws of 1952, a petition for writ of error coram nobis. On the same day, the date of execution of the sentence being only 3 days distant, we entered an order pursuant to the provisions of Section 8 of said Chapter 250 staying the execution of the sentence until further order of this Court and we set the hearing of the petition for February 28, 1956, in the Supreme Court room in the City of Jackson, Mississippi. On the appointed date counsel for the appellant and for the State appeared and argued the petition. The petition is divided into two general sections, the first being on the ground of newly discovered evidence, and the second being on the denial of federal constitutional rights. At the argument, counsel for the petitioner-appellant stated orally to the Court that he would abandon that part of his petition directed to newly discovered evidence, but since there is no official record of such abandonment, we deem it necessary to deal with that ground as well as the second ground.

It is first contended by petitioner that after the denial of the writ of certiorari by the Supreme Court of the United States petitioner, by members of his family, has discovered that Bryant Nelms, the husband of the decedent named in the indictment, after the shooting of decedent, was heard to say that he had shot the decedent while attempting to shoot the petitioner, and the petition incorporates by reference the entire transcript of the proceedings of his trial in the lower court. We have carefully read the transcript again and we find that from the testimony of the said Bryant Nelms and from the testimony of a disinterested eyewitness, the petitioner first shot Bryant Nelms, striking him in the mouth and in the hip, and the said Bryant Nelms was prone upon the ground at the time when the decedent, his wife, came out of the Dairy Bar waving her arms in the air and telling the petitioner not to shoot her husband again, whereupon the petitioner turned his pistol upon Mrs. Nelms and shot her one time, the bullet striking her underneath the right arm and going almost entirely through her body, striking both the lungs and heart. She immediately fell to the ground and was dead almost instantly whereupon the petitioner drove his car away from the place, changing to a southeasterly direction and, as he was escaping and after Mrs. Nelms was already dead upon the ground, Mr. Nelms raised up on his elbow and then for the first time managed to get his pistol out of his right pants pocket and began shooting at the fleeing automobile in which petitioner was riding, striking the automobile one time. According to all of the proof in the original record, Mrs. Nelms was dead before this shooting by Mr. Nelms occurred. He was not shooting at or toward his wife, and it is utterly impossible that he shot and killed his wife while undertaking to shoot the petitioner.

Moreover there is attached to the answer for the State an affidavit of Bryant Nelms denying that he shot his wife and denying that he has ever told any one that he shot his wife, and there is no proof to the contrary before us. It is charged in the petition that Mr. W. A. McCorkle, the father of Mrs. Nelms, has knowledge and would testify that Mr. Nelms told him that he accidently shot his wife while undertaking to shoot the petitioner, and there is attached to the answer of the State the original affidavit of the said W. A. McCorkle denying said charge in toto and there is no proof to the contrary before us. The burden of proof on this hearing was upon the petitioner and it was evidently in recognition of this fact that he announced in his oral argument that he would abandon that part of the petition which raises the question of newly discovered evidence.

The petition further charges, and the record shows, that a bullet was taken from the body of the decedent and that the pistol used by the petitioner, and the bullet taken from the body of decedent, were submitted to ballistic examination and test, and that the report thereof was not offered in evidence in the trial of the case and if produced would show that the bullet was fired, not from the pistol used by petitioner but by the pistol used by Mr. Nelms. It is true that no ballistic report was offered in evidence by the State at the trial. The record shows that the pistol used by the petitioner was taken from petitioner's wife after his apprehension many miles from the scene of the shooting. The State exhausted every effort to identify this pistol as the one used by petitioner, but over repeated objections the trial court refused to admit the pistol in evidence because of insufficiency of identification by the State. At the trial petitioner was the last witness who testified, long after the State had rested its case, and he then identified the pistol used by him as being the same one which was taken from the person of his wife, and then for the first time the pistol was admitted in evidence, at a stage of the proceeding when it was entirely too late for the prosecution to put the ballistic report in evidence. However, in its answer to the present petition, the State has exhibited a photostatic copy of the report from the Federal Bureau of Investigation which shows that the bullet taken from the body of Mrs. Nelms was fired from the pistol which was used by petitioner, which was a .32 caliber Colts revolver, and was a different caliber from that which the record shows was used by Mr. Nelms.

Not only did the petitioner fail to offer any proof in support of his allegations as to newly discovered evidence, but moreover the rule is well settled that the writ of error coram nobis will not lie for newly discovered evidence going to the merits of the issues trial in the court below. We had occasion to deal with this question fully in Wetzel v. State, Miss., 76 So.2d 194, 198-199, not yet reported in the State Reports, wherein the authorities were reviewed and we said:

'Petitioner contends that on the basis of his petition and the affidavits of Dye and himself, he is entitled to a new trial on the ground of newly discovered evidence. But it is well established both in Mississippi and elsewhere that the writ of error coram nobis can not be invoked for newly discovered evidence going to the merits of the issues tried in the court below.

24 C.J.S., Criminal Law, Sec. 1606, pp. 149-150; 49 C.J.S., Judgments, Sec. 312, pp. 567-568; 31 Am.Jur., Judgments, Sec. 804; Annotation, 1924, 33 A.L.R. 84; Fugate v. State, 1904, 85 Miss. 94, 37 So. 554; Cummins v. State, 1926, 144 Miss. 634, 110 So. 206; White v. State, 1930, 159 Miss. 207, 131 So. 96; Powers v. State, 1933, 168 Miss. 541, 548, 553, 151 So. 730; Buckler v. State, 1935, 173 Miss. 350, 356, 161 So. 683; Roberson v. Quave, 1951, 211 Miss. 398, 51 So.2d 62, 777; Wheeler v. State, 1954 70 So.2d 82. The reasons for this well established rule are stated in 31 Am.Jur., Judgments, Sec. 804, footnote 7: 'If the writ of coram nobis were allowed on the ground of newly discovered evidence, after judgment, the defendant might discover or fabricate evidence which would have been material on the trial, that it would be necessary for him only to obtain the writ, assign errors in fact, and proceed to try the whole matter over again, and that such a practice would render the validity of the judgments of the courts too uncertain to comport with sound policy, safety, or public convenience."

The second section of the petition before us is based upon the grounds of the denial to petitioner of federal constitutional rights consisting primarily of the alleged fact that the petitioner is a member of the Negro race and that in the county where he was tried Negroes have been systematically excluded from jury service. So far as the whole record before us is concerned, including both that of the original trial and of the petition now before us, there is no showing whatsoever that Negroes are or have been systematically excluded from jury service in the county where he was tried. So far as we know from the record of the trial, there may have been Negroes on the grand jury which indicted petitioner and there may have been Negroes on the jury which convicted him. The record is wholly silent as to this matter. So far as it shows petitioner was indicted and tried by a fair and impartial jury and we cannot take judicial notice of something as to which there was no proof whatsoever.

After this case was originally decided by us on March 28, 1955,...