Gordon v. State

• Decision Date: 27 January 1964
• Docket Number: No. 42486,42486
• Citation: 160 So.2d 73
• Parties: George A. GORDON, Alias George 'Doc' Smith v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 73

160 So.2d 73

George A. GORDON, Alias George 'Doc' Smith v. STATE of Mississippi.

No. 42486.

Supreme Court of Mississippi.

Jan. 27, 1964.

On Motion for Stay of Execution Feb. 10, 1964.

R. Jess Brown, Jackson, Melvin Wulf, Robert D. Childres, New York City, for appellant.

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

ETHRIDGE, Justice.

This case is before us on the application of George A. Gordon for leave to file in the circuit court a petition for writ of error coram nobis. Miss.Code 1942, Rec., section 1992.5 provides that, in all cases wherein a judgment of conviction has been affirmed by this Court, no petition for the writ can be filed in the trial court unless and until an application is made to a quorum of the Justices of this Court for an order allowing such proceeding. Attacking his conviction, Gordon asserts certain new facts and constitutional questions.

The offense was committed on the afternoon of October 16, 1961. In December 1961 applicant was tried for the crime of rape in the Circuit Court of Lowndes County, convicted, and sentenced to death. On October 18 and 23, 1961, by two orders, the circuit court had appointed two able and experienced attorneys to represent him. They handled the first trial in a competent manner, as is evidenced by the fact that after the conviction, an appeal was taken, and this Court reversed the judgment on the ground that Negroes had been systematically excluded from the grand and petit juries. Gordon v. State, 243 Miss. 750, 140 So.2d 88 (April 1962).

A new indictment was returned, and on June 22, 1962 the case was tried again, and Gordon was convicted and sentenced to death. At the second trial he was again represented by the same counsel who had been successful in getting a reversal of his first conviction. On February 4, 1963 this Court affirmed the judgment and sentence of the circuit court. Gordon v. State, 149 So.2d 475 (Miss.1963). On this second appeal Gordon was represented by the same two attorneys. The two issues presented were whether the offense was an attempted rape rather than rape, and whether under the particular circumstances the jury had found defendant guilty but was unable to agree upon the punishment. This Court's opinion rejected both of appellant's contentions. 149 So.2d 475; see 150 So.2d 851 (denying stay).

On June 17, 1963 the Supreme Court of the United States denied Gordon's petition for a writ of certiorari. Gordon v. Miss., 375 U.S. 852, 83 S.Ct. 1918, 10 L.Ed.2d 1072. This Court then set August 23, 1963 as the date for execution. 155 So.2d 295. On August 2 Gordon with new counsel filed the present application for coram nobis and on August 14 a Judge of this Court in vacation stayed execution pending action by the Court on it. Applicant's attorneys filed a brief in support of his petition. The State answered, denied its allegations, and pleaded that those with reference to the arrest, detention and confessions of petitioner had already been adjudicated. It further attached as an exhibit to the State's answer a copy of Gordon's petition for writ of certiorari, filed in the Supreme Court of the United States by Gordon's present counsel. That petition, which was denied, raised and argued substantially the same matters alleged in the present application.

Kennard v. State, 148 So.2d 660 (Miss.1963), denying an application for leave to file a petition for writ of error coram nobis in the circuit court, reviewed the earlier cases, and held that a petition for newly discovered facts would not be entertained unless there is a substantial probability that a new hearing on a factual issue would produce a different result; that this Court would not authorize relitigation of the same issues already adjudicated in the trial on the merits; and that a rehearing on petition for new trial would not be granted on newly discovered evidence which was simply cumulative and additional to that adduced at the trial on the identical issues. Kennard (148 So.2d at 662) further stated:

'The fair and efficient administration of justice requires that, at some point, litigation of judicial issues shall be finally determined and ended. In sum, applicant's request for a new hearing on the same issues which he presented fully to the court, in his trial on an indictment for burglary, has no merit, because it does not come within reasonable standards, previously determined, for re-opening a judgment after it becomes final. Applicant has had his day in court on these identical issues. Our responsibility for the administration of justice in this state requires that, under these circumstances, the application be denied.'

After careful consideration of the present application, in the light of the record made in the trial on the merits, the briefs of counsel and all the facts, we think the foregoing comments are applicable to the questions raised by Gordon in this proceeding. To the same effect is Entrekin v. State, 242 Miss. 262, 133 So.2d 551, 134 So.2d 926 (1961) (denying application).

It is undisputed that Gordon is the man who assaulted the prosecutrix. He admitted it in his testimony. At the time of the offense, Gordon had a shirt over his face, so the woman did not see it. But her inability to identify her assailant's face is rendered unimportant by Gordon's own admission that he was the man who assaulted the prosecutrix, although he contends that it was only an attempted rape, because of a pre-ejaculation, rather than a rape with penetration. Applicant's own testimony, therefore, eliminated any issue of identification of him as the offender. The only question of the offense itself was whether the crime was rape or attempted rape. The prosecutrix said it was the former, the defendant the latter. Other evidence supported her version, including one confession by defendant. That was an issue for the jury.

Applicant argues that on the second trial there was again systematic exclusion of Negroes from the grand and petit juries. He concedes that he did not raise this issue in the trial court, and admits that the grand jury which re-indicted him in June 1962 included one Negro, and the venire from which the petit jurors were chosen contained two Negroes. Under Mississippi Code 1952, Rec., section 1762 every male citizen not under the age of twenty-one years, who is either a qualified elector or a resident freeholder of the county for more than one year, and has not certain criminal disqualifications, is a competent juror. The record reflects that the defendant's counsel tried the case vigorously and effectively. It indicates no lack of professional responsibility by them. We hold the issue was effectively waived.

Objections to the qualifications of grand jurors must be made, if at all, before they are empaneled, and not...