Lang v. State, 40711

• Decision Date: 27 January 1958
• Docket Number: No. 40711,40711
• Citation: 100 So.2d 138,232 Miss. 616
• Parties: Theldor LANG v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 138

100 So.2d 138

232 Miss. 616

Theldor LANG v. STATE of Mississippi.

No. 40711.

Supreme Court of Mississippi.

Jan. 27, 1958.

Collins & Brown, Laurel, for appellant.

Joe T. Patterson, Atty. Gen., by J. R. Griffin, Asst. Atty. Gen., for appellee.

LEE, Justice.

This Court, on the former appearance of this cause, Lang v. State, 92 So.2d 670, sustained the appellant's petition, under Chapter 250, Laws of 1952, and granted him leave to file in the Circuit Court of Jones County, the trial court, a motion to vacate the judgment whereby he had been sentenced to serve a life term in the State Penitentiary for the crime of rape, subsequently affirmed by this Court, 87 So.2d 265, and to grant him a new trial on account of newly discovered evidence.

The opinion therein detailed the allegations of the petition with respect to the rape on August 5, 1954, of Mrs. Edna Dreding by a Negro, five feet two inches to six inches tall and weighing one hundred and thirty to one hundred and thirty-five pounds, under threat of harm to her baby; her identity of the appellant as the rapist; that he was wearing a trench coat at the time; that, on the occasion Mrs. Dreding's billfold, containing her wedding ring, was stolen; but that a fingerprint, lifted from the window ledge where the screen was removed, was not the fingerprint of the appellant.

The opinion further detailed the allegations of the petition wherein the newly discovered evidence was shown to be as follows: Mrs. Helen Sims, five feet seven and one-half inches tall, under threat of harm to her small child, was raped in Laurel during the night of June 15, 1956, by a Negro man shorter than she, after substantially the same pattern as the crime against Mrs. Dreding. On July 5, 1956, Leroy Moody, a colored male, twenty-six years old, five feet three inches tall, weighing one hundred and thirty pounds, confessed to the rape of Mrs. Sims. His fingerprints were taken and the fingerprint found on the window of Mrs. Dreding's apartment on August 5, 1954, proved to be his. At the time of Mrs. Dreding's rape, Leroy Moody was employed at a filling station abont fifty to one hundred feet from the place where Mrs. Dreding's stolen billfold was found. On November 5, 1956, Ernestine Moody, the wife of Leroy Moody, was found in possession of a wedding ring, identified by Mrs. Dreding as hers and which was taken from her home in the billfold on the night of her rape. Ernestine Moody at first claimed that she bought the ring, but later admitted that Leroy Moody gave it to her. Leroy Moody stated that he bought the ring, while working at the filling station, from a man whom he did not know. Moody had a trench coat similar to the one worn by the Negro who attacked Mrs. Dreding. These allegations were all sworn to and were verified by the affidavits of the officers who investigated the crimes.

In the hearing before this Court, the State by its answer admitted in substance the allegations of the petition, but asked the Court to deny the same on the ground that the effect of the newly discovered evidence would amount to no more than additional or cumulative evidence on the issue which had been thoroughly litigated in the trial court.

In passing upon the sufficiency of the petition, the Court said: 'When the facts set out in the petition are considered together with the facts revealed by the transcript of the testimony in petitioner's trial, such grave doubt arises as to petitioner's guilt that no enlightened court dedicated to the plainest principles of justice should deny a judicial inquiry to determine whether the judgment should be vacated and a new trial granted. If there is no parallel case in the books, and if it can be said that there is no clear precedent for the entertainment of this petition, such should not deter us from the performance of our duty.'

It was pointed out that: '* * * where the writ of error coram nobis does not lie, and a petition is filed under Chapter 250, Laws of 1952, bringing a case within the narrow limits stated in the following paragraph, we will entertain such petition as being a remedy supplemental to the writ of error coram nobis.'

The narrow limits under which such a petition would be entertained were set forth in the following paragraph to wit: '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 discovered it by the exercise of due diligence; it will not be sustained if the newly discovered evidence is merely cumulative, or additional to that adduced at the trial; it will not be sustained if the newly discovered evidence merely tends to impeach other testimony offered at the trial; and it must be filed as soon as reasonably practical after the discovery of the new evidence.'

When the Court granted the appellant's petition, it thereby held that the allegations of the petition, together with the affidavits, brought it within the narrow limits under which the Court would entertain such petitions. This stemmed from the fact that 'such grave doubt arises as to petitioner's guilt.'

The opinion then admonished the trial court to 'hear the proof offered by the parties and, in the exercise of his sound discretion, determine whether a new trial should be granted.' The purpose of such hearing was to give the State an opportunity to controvert the allegations, demand proof, if it so desired, and offer such contradictory evidence as it might desire.

Pursuant to the authority granted by this Court, Lang thereafter filed in the trial court his petition of like tenor and effect as the one which had been filed in this Court, accompanied by the affidavits of the investigating officers.

The State answered the petition but did not deny the truthfulness of the allegations or affidavits making up the petition. In effect it challenged the sufficiency of such allegations for the purposes intended.

At the outset of the hearing, counsel for the appellant inquired whether he would be required to adduce oral evidence to sustain his contentions. After questioning counsel, both for the State and the defendant, the court held that there was no denial by the State of the facts, and that necessarily they should be taken as true. He observed that the matter for consideration was the effect of those facts. Besides the State, through its counsel, signified that it did not desire to offer any oral testimony.

In other words, the petition before the trial judge was the same as the petition which had been previously considered by this Court.

The trial judge, in overruling the petition, expressed the opinion that there was a lack of diligence on the part of the appellant.

But Lang's conviction was affirmed by this Court on May 14, 1956. The suggestion of error was overruled June 28, 1956. The rape of Mrs. Sims occurred June 15, 1956. It was not until July 5, 1956, that Leroy Moody confessed to the rape of Mrs. Sims. However, counsel for the appellant were not advised of the newly discovered evidence here in question until the month of December 1956. It appears that appellant and his counsel moved as rapidly as reasonably possible under the circumstances. The petition was promptly filed here and a decision was rendered thereafter on February 25, 1957.

The court also attributed lack of diligence to the fact that Luther Austin, one of the attorneys who was appointed by the court to defend the case, did not sign the petition for a new trial. The record does not show participation by this attorney in the hearing. But the appellant's brief states, without dispute, that following the previous trial on the merits, Austin withdrew from the case. But be that as it may, it is clear that, if he had still been participating, he could not have found out about this evidence because it did not arise until after Leroy Moody's arrest, and was not fully verified by the officers until the month of December 1956.

The learned trial judge, in his opinion, overruling the motion for a new trial, said in part: 'A consideration of the admissible and competent newly discovered evidence certainly tends to establish the presence of Leroy Moody at the home of Mrs. Dreding on the night of the rape. The identification of the fingerprints on the window ledge as his places him definitely at the window. It adds to what was already known by way of identifying the particular person who placed the prints there. The possession of the ring by Moody's wife adds another link in the chain that fixes Moody's connection with the rape. It verifies what was already known, that the ring was stolen and further identifies Moody's participation. But neither of these facts precludes the presence of Lang if it be considered that such evidence does not impeach the evidence of the prosecutrix,' who, according to her evidence, was positive in her identification.

Again the learned trial judge said: 'Many factors in this case make it an extremely complicated one, and one not easy of decision.' But he then finally observed that: '* * * the Court cannot say that the newly discovered evidence which the Court considers admissible, if presented to a jury, together with all the other evidence, would make it practically conclusive that a verdict of acquittal of the defendant Lang would result.'

In the original trial, inasmuch as the assailant had represented to his victim that he had a 'buddy', it was said that 'the failure of the defendant's fingerprints to conform to those prints which were taken from the window did not necessarily create a reasonable doubt as to his guilt.' It was pointed out as 'not unreasonable that the original motive was burglary or rape, or both, in which he (the assailant)...