Kennard v. State

• Decision Date: 14 January 1963
• Docket Number: No. 41890,41890
• Citation: 246 Miss. 209,148 So.2d 660
• Parties: Clyde KENNARD v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 660

148 So.2d 660

246 Miss. 209

Clyde KENNARD v. STATE of Mississippi.

No. 41890.

Supreme Court of Mississippi.

Jan. 14, 1963.

R. Jess Brown, Vicksburg, for appellant.

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

ETHRIDGE, Justice.

Clyde Kennard was convicted of burglary in the Circuit Court of Forrest County, and his conviction was affirmed by this Court on April 3, 1961. Kennard v. State of Miss., 242 Miss. 691, 128 So.2d 572 (1961), cert. den., 368 U.S. 869, 82 S.Ct. 111, 7 L.Ed.2d 66.

On December 21, 1962 Kennard filed in this Court an application for leave to file a petition for writ of error coram nobis in the Circuit Court of Forrest County, Mississippi. Miss.Code 1942, Rec., Sec. 1992.5. This application was based on alleged newly discovered evidence, and a decision of the U. S. Circuit Court of Appeals, 5th Circuit, granting a temporary injunction in a civil rights suit by the United States against Thereon C. Lynd, Circuit Clerk and Registrar of voters of Forrest County. United States v. Lynd, 301 F.2d 818 (C.A. 5th, 1962).

Along with the application, Kennard entered a motion to set it 'for hearing as an emergency matter.' It was based on the fact that applicant brought in the U. S. District Court, Northern District of Mississippi, Delta Division, a petition for writ of habeas corpus against C. E. Breazeale, Superintendent of the State Penitentiary. The motion does not contain a copy of the petition for habeas corpus, or the response of Breazeale, but has attached to it a certified copy of the hearing in that matter, before District Judge Allen Cox, upon respondent's motion to dismiss the petition for writ of habeas corpus. The district court sustained that motion to dismiss on December 10, 1962, on the ground that Kenard should apply first to the state courts of Mississippi for a post-conviction remedy, if he were entitled to it.

Hence Kennard filed in this Court the present application for leave to file a petition for writ of error coram nobis in the Circuit Court. It charges that, despite the proof in the record in the case of Kennard v. State, No. 41,890, the Circuit Court, in the trial on the merits for burglary, erred in declining to quash the venire and the indictment. This is a re-argument of the case on the merits of that issue. It was fully discussed in our original decision affirming the conviction. 242 Miss. at 695-701, 128 So.2d 572, cert. den., 368 U.S. 869, 82 S.Ct. 111, 7 L.Ed.2d 66. On that single aspect of the application, namely, a re-argument of the facts reflected in the record of the trial, we of course decline to reconsider matters finally adjudicated.

The application also avers certain facts 'not contained in the record and unknown to the trial court as a matter of record.' These averments of newly discovered facts are summarized apparently from the opinion in United States v. Lynd, supra. No affidavits are attached to the application to support the alleged facts. The record in the burglary trial contained a large amount of testimony offered by applicant therein on his motions to quash the indictment and venire on the ground of systematic exclusion of Negroes from grand and petit juries. The trial court and this court considered carefully the evidence, and concluded that Kennard failed to show any such systematic exclusion. 242 Miss. 691, 695-701, 128 So.2d 572.

Moreover, that same record reflects that, after Kennard moved for a writ of subpona duces tecum, for production of the voter registration books, his counsel withdrew that motion. Hence our original decision held that appellant could not complain of the trial court's failure to sustain his motion, when he withdrew it. 242 Miss. 700-701, 128 So.2d 572. Since this issue was fully tried and adjudicated in the trial court and this Court (the hearing on the merits of the burglary charge), additional evidence which Kennard might produce in a new hearing on it would simply be cumulative.

The writ of error coram nobis cannot be invoked for newly discovered evidence going to the merits of the issue tried in the court below. Lang v. State of Mississippi, 230 Miss. 147, 167, 87 So.2d 265, 89 So.2d 837, 92 So.2d 670 (1957). However, in Lang v. State it was held that, where the writ of error coram nobis does not lie, and a petition is filed under Code Sec. 1992.5, bringing a case within certain limitations, 'we will entertain such petition as being a remedy supplemental to the writ of error coram nobis.' 230 Miss. at 170, 92 So.2d at 675. Those limitations are outlined in 230 Miss. at 172, 92 So.2d at 675:

'Such a petition should be confined to the narrowest limits compatible with justice; it will be sustained only if the newly discovered evidence is of such nature that it would be practically conclusive that it would cause a different result; it will not be sustained if the petitioner or his attorney knew of the existence of such evidence at the time of the trial, or could have...