Holt v. State

• Decision Date: 25 February 1901
• Court: Mississippi Supreme Court
• Parties: WILLIAM P. HOLT v. STATE OF MISSISSIPPI

29 So. 527

78 Miss. 631

WILLIAM P. HOLT v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 25, 1901

October 1900

FROM the circuit court of Itawamba county. HON. EUGENE O. SYKES Judge.

Holt the appellant, was convicted of murder. After the conviction he applied to the circuit judge for a writ of error coram nobis, the facts in respect to which are stated in the opinion of the court delivered by Judge Calhoon. The writ being denied, appellant presented two appeals to the supreme court, one from the denial of said writ of error and the other from the conviction of murder. The facts on the last named appeal are stated in the opinion of the court delivered by Judge Terral.

Affirmed. Judgment reversed, annulled and new trial awarded.

Anderson & Long, for appellant.

The writ of error coram nobis is an unusual proceeding, not only in this state, but of late years elsewhere. However, it is one recognized by common law, and is authorized in this state in a proper case. In 5 Enc. Pl. & Prac., pp. 26-37, will be found a treatise on the pleading and practice and procedure in cases where a writ of error coram nobis is appropriate. This court has recognized this proceeding in Several cases; however, none of them recent, and none of them at all parallel to this case, and therefore not in point except for the purpose of showing that it is a proceeding not obsolete in Mississippi. Parkinson v. Waldron, 7 Smed. & M., 189; Fellows v. Griffin, 9 Smed. & M., 362; McMiller v. Patton, 3 Smed. & M., 463; Miller v. Ewing, 8 Smed. & M., 421; Land v. Williams, 12 Smed. & M., 362; James v. Williams, 44 Miss. 47.

The attorney-general cites Tyler v. Morris, 34 Am. Dec., 395, in support of the proposition that there is no appeal from the judgment of the court declining the writ of error coram nobis. This was a case in which a motion was made for the writ upon affidavits setting forth that plaintiff, Tyler, was dead at the time the judgment was rendered. The attorney for plaintiff appeared and contested the motion by counter affidavit, and the court refused to grant the writ because the proof showed that the plaintiff was not dead when the judgment was rendered. In the first place we do not think this is a case in point, and in the next, we confidently believe this court would not follow it. It is not good law.

Section 32, code of 1892, and other sections of chapter 5, on appeals, give the right of appeal in all cases from final judgments and decrees. The judgment of the court, refusing to grant the writ in this case, was certainly a final judgment. That was the end of the matter so far as the petitioner was concerned. It may be, as contended, that whether or not a writ shall be granted is a matter of discretion with the circuit court or circuit judge, still, the supreme court has the right to review the exercise of that discretion. It will see that there is no abuse of that discretion.

It was certainly error for the court below to permit the state to offer evidence showing, or tending to show, that appellant defrauded the deceased in the lumber transaction. Such evidence was wholly irrelevant, but it was greatly harmful.

Walker & Tubb and Monroe McClurg, attorney-general, for appellee.

Even if the writ of error coram nobis, be applicable to a criminal case, the appeal from its refusal by the circuit judge, cannot avail appellant, because--

1. The office of such a writ of error is to correct a judgment and not to obtain a new trial.

2. The averments of the petition for the writ are too general, and specific facts are not stated in it. James v. Williams, 44 Miss. 47.

3. The judgment of the circuit judge denying the writ is not appealable. Tyler v. Morris, 4 Dev. & B., 487, S. C. 34 Am. Dec., 395.

The only question on the merits that is worthy of a moment's consideration is the admissibility of the evidence showing that appellant's dishonest transaction with the deceased provoked the pretended threats made by deceased. It does seem to us that no man should be permitted to extort threats from another and then make such threats a pretext for slaying him. This is exactly what appellant did. The conviction should be affirmed.

Argued orally by W. D. Anderson, for appellant, and W. B. Walker, for appellee.

OPINION

ON WRIT OF ERROR CORAM NOBIS.

CALHOON J. TERRAL, J.

Holt was convicted of murder and the death penalty had been pronounced. After the court had adjourned he presented to the circuit judge, in vacation, his petition for a writ of error coram nobis, asking that the verdict and judgment be vacated, because:

1. One of the jurors was not a citizen nor qualified elector of the county of the trial.

2. "Because it was communicated to the jury which tried your petitioner, while said trial was in progress, either by the officers in charge of said jury, or some outsider, that your petitioner had killed two men and shot another, before the homicide of Jesse Ridings, for which he was then being tried, which statement was untrue, but which was to his prejudice and deprived him of a fair trial."

3. Because a state witness had stated to divers persons, before the trial, that he was not present at the killing and knew nothing about it, and, but for his testimony there would have been no conviction.

The petitioner avers that he used due care and diligence and did not know of any of these things until after the court of his trial had adjourned, and prays supersedeas of his execution. The judge denied the writ and Holt appeals. The petition is supported by no affidavit except that of the petitioner himself.

We decline now to decide whether such a writ, if allowable at all, may be reviewed here by appeal from the action of a circuit judge in vacation refusing it....