Goldsby v. State, 41547

• Decision Date: 10 November 1960
• Docket Number: No. 41547,41547
• Citation: 124 So.2d 297,240 Miss. 650
• Parties: Robert Lee GOLDSBY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 297

124 So.2d 297

240 Miss. 650

Robert Lee GOLDSBY v. STATE of Mississippi.

No. 41547.

Supreme Court of Mississippi.

Nov. 10, 1960.

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

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., for appellee.

ETHRIDGE, Justice.

Appellant Goldsby was convicted of murder, and sentenced to the death penalty. On October 3, 1960, this Court affirmed that conviction, and set the date for execution of the death sentence for November 15, 1960. Goldsby v. State, Miss., 123 So.2d 429.

On November 5, 1960, appellant by his attorney filed herein (1) a petition for appeal in forma pauperis and for stay for execution, in connection with a petition for writ of certiorari he proposes to file in the Supreme Court of the United States; and (2) a petition for leave to appeal in forma pauperis. The State filed an answer to these petitions, asserting that they should be denied, and appellant replied to the answer. Since the date for execution of sentence is next Tuesday, November 15, 1960, the Chief Justice called an in banc conference of all of the Judges of this Court for today, Thursday, November 10. The Court has considered these petitions, and concludes they should be denied.

28 U.S.C.A. Sec. 2101(f) provides in part: 'In any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari, the execution and enforcement of such judgment or decree may be stayed for a reasonable time to enable the party aggrieved to obtain a writ of certiorari from the Supreme Court. The stay may be granted by a judge of the court rendering the judgment or decree or by a justice of the Supreme Court, and may be conditioned on the giving of security, * * *.'

Whether a judge of a State Supreme Court, or the Court itself, should grant a stay of execution is within his or its sound discretion. There is no absolute right to a stay. Our opinion in 123 So.2d 429 recounts at some length the almost six years of the long and litigious history of this case. Appellant's guilt is clear and evident. He has received every safeguard of due process of law and equal protection of the laws under the state and federal constitutions. The question is whether there is any sufficiently debatable issue pertaining to a substantial federal question which would warrant this Court in staying execution, until the United States Supreme Court has passed upon appellant's petition for certiorari, not yet filed.

Rule 19 of the United States Supreme Court, 28 U.S.C.A. is entitled 'Considerations governing review on certiorari'. It provides in part as follows: '1. A review on writ of certiorari is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered:

'(a) Where a state court has decided a federal question of substance not theretofore determined by this court, or has decided it in a way probably not in accord with applicable decisions of this court.'

We do not think that appellant can assert any ground conceivably coming within the quoted standards of Rule 19. The assignments of error argued by appellant in his appeal to this Court were dealt with seriatim and in some detail in the opinion in 123 So.2d 429. None of them in our opinion present a federal question of substance not theretofore determined by the U. S. Supreme Court. None of those points were decided in a way probably not in accord with applicable decisions of the federal court. One of the petitions considered herein indicates that appellant is relying principally if not exclusively upon the contention that members of the Negro race were systematically excluded from the grand jury which returned the indictment. That matter was considered at length in Point II of our opinion. The United States Court of Appeals, in United States ex rel. Goldsby v. Harpole, 5 Cir., 263 F.2d 71, expressly held that objections to the grand jury were waived by appellant, and he was legally detained and could be retried upon the original indictment, upon which he was tried and convicted. Appellee Harpole's petition for writ of certiorari from that decision was denied. 361 U.S. 838, 80 S.Ct. 58, 4 L.Ed. 78.

There is no substantial federal question raised in this case, nor are any of the matters in it sufficiently debatable to lead to the belief that at least four members of the United States Supreme Court would vote to grant certiorari. Edwards v....