Gross v. State, 5209
Decision Date | 13 March 1967 |
Docket Number | No. 5209,5209 |
Citation | 242 Ark. 142,412 S.W.2d 279 |
Parties | Billy GROSS, Appellant, v. STATE of Arkansas, Appellee. |
Court | Arkansas Supreme Court |
Charles H. Eddy, Morrilton, for appellant.
Joe Purcell, Atty. Gen., William R. Hass, Asst. Atty. Gen., Little Rock, for appellee.
Appellant Billy Gross was convicted of murder in the first degree in the Circuit Court of Conway County on March 5, 1964 and sentenced on March 19, 1964 to life imprisonment. He was charged with having killed one Frank Birch, alias Dutch Charton. No appeal was taken from that conviction and sentence. On July 9, 1965, appellant filed a pleading he designated Petition for Writ of Habeas Corpus, alleging that his conviction was void because of violation of his constitutional rights and offering newly discovered evidence. This evidence was alleged to be a statement of one Reverend Dewey Dill and wife that the deceased was alive several hours later than appellant claimed the evidence showed Birch was supposed to have died at appellant's hands.
On August 27, 1965 appellant filed a petition for writ of error 'Cora Nova' (coram nobis). In this pleading he alleged error on the part of the trial court in denying a mental examination of appellant before trial, in permitting an alleged relative of the deceased to sit on the jury, the failure of his appointed attorney to subpoena certain unnamed witnesses, the denial of his right of appeal by his attorney, and new evidence, the latter being that of Reverend O. D. Dill and wife. Attached was a statement signed by Reverend O. D. Dill relating an occasion of his having seen Frank Birch alive. On December 7, 1965 appellant filed a motion for post-conviction hearing and review, purportedly under Criminal Procedure Rule No. 1. In addition to repeating most of the contents of his previous pleadings, appellant alleged other errors based on jury selection, separation of witnesses, admission of testimony, credibility of witnesses, misconduct of officials toward the jury, refusal by prison officials of permission to write courts, denial of counsel, and withholding of evidence by the sheriff.
Hearing on the various motions and petitions of appellant was held by the trial court on March 7, 1966 at which time the court, after hearing the testimony of O. D. Dill, Marlin Hawkins, Joe Quinn, L. M. Reid, Harry Locke and Joe Brewer, denied appellant a new trial on the ground of newly discovered evidence, that being the only ground of appellant's various motions then presented, appellant's counsel having said that the testimony of O. D. Dill was all the proof on behalf of appellant. From the order denying a new trial comes this appeal.
No evidence was offered in the trial court on any ground of appellant's motions except that of newly discovered evidence, and the brief on his behalf is also confined to this ground. Therefore, we have no basis for consideration of any other ground on this appeal.
As a motion for new trial, appellant's pleadings, being filed after the expiration of the term at which he was convicted, came too late. Ark.Stat.Ann. § 43-- 2202 (Repl.1964); Thomas v. State, 136 Ark. 290, 206 S.W. 435; State v. Martineau, 149 Ark. 237, 232 S.W. 609, cert. dismissed, Martineau v. State, 257 U.S. 665, 42 S.Ct. 52, 66 L.Ed. 424. Being thus tardily filed, it might properly have been stricken out. Delaney v. State, 212 Ark. 622, 207 S.W.2d 37.
A writ of error coram nobis does not lie to review an issue of fact or to contradict an adjudicated issue of fact. It is never a means of remedy upon the ground of newly discovered evidence. Howard v. State, 58 Ark. 229, 24 S.W. 8. Consequently, we will consider this appeal on the motion for post-conviction relief under Criminal Procedure Rule No. 1. In doing so, we will consider appellant's contention that he was entitled to a new trial for newly discovered evidence (if indeed newly discovered evidence can actually be a proper basis under this rule). At best, we can only consider this ground for post-conviction relief on the same basis that we would consider a timely filed motion for new trial on the same ground.
Newly discovered evidence is one of the least favored grounds of a motion for new trial. See 4 Ark.Law Review 60. Such a motion is addressed to the sound legal discretion of the trial judge and an appellate court will interfere only in case of an apparent abuse of discretion or injustice to the movant. Ward v. State, 85 Ark. 179, 107 S.W. 677; Osborne v. State, 96 Ark. 400, 132 S.W. 210; Russell v. State, 97 Ark. 92, 133 S.W. 188; Huckabee v. State, 174 Ark. 859, 296 S.W. 716. One who merely states that new evidence in his favor has been discovered subsequent to his trial has failed to meet the requirements for a new trial on this basis. Taylor v. State, 230 Ark. 809, 327 S.W.2d 6. He must show clearly that the evidence has been discovered since the trial. White v. State, 17 Ark. 404; Reeder v. State, 181 Ark. 813, 27 S.W.2d 989; Thurman v. State, 211 Ark. 819, 204 S.W.2d 155. Such a motion is also properly overruled if the applicant therefor does not state acts on his part which constitute reasonable diligence to discover the evidence before trial. Ward v. State, supra. He should state why he had not discovered the evidence earlier. Young v. State, 99 Ark. 407, 138 S.W. 475. In this regard, the only evidence offered was the testimony of O. D. Dill, although it is intimated in appellant's pleadings that Dill's knowledge came to the former's attention by virtue of a letter from Dill dated March 4, 1965. While Dill first testified that he had never mentioned his seeing the deceased after Birch was supposed to have been dead, he admitted on cross-examination that he told certain named neighbors that he had seen 'Dutch' alive on the morning following the time these neighbors suggested he had been killed. This conversation took place before the trial when the parties were cleaning up the house of the deceased. Dill then states that he did not have an opportunity to tell appellant's mother about this until the time of her husband's funeral, but that Mrs. Gross had already received the information from Mrs. Wilma Hall. Dill's excuse for not disclosing his information to any official or to the appellant was that because of a bleeding ulcer he did not figure he needed to be a witness. Later, on further cross-examination, Dill admitted that he was one of the closest neighbors of the deceased, that he told various neighbors that if Birch was killed on Saturday night, witness had seen him Sunday morning, that he first told a Mr. Bachman about a week later, and that he had made the information available to appellant's mother on the same date deceased's body was discovered. It may be that Dill was talking about the body of the father of appellant, but he might well have been talking about the body of Birch. Although Dill was a pallbearer at the elder Gross's funeral, he could place the date only as being in 1963, but could not state the day of the week, date, or month. He also placed the trial of ...
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