Lang v. State, 40098

• Citation: 230 Miss. 147,92 So.2d 670
• Decision Date: 25 February 1957
• Docket Number: No. 40098,40098
• Parties: Theldor LANG v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 670

92 So.2d 670

230 Miss. 147

Theldor LANG v. STATE of Mississippi.

No. 40098.

Supreme Court of Mississippi.

Feb. 25, 1957.

Collins & Brown, Laurel, for appellant.

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

GILLESPIE, Justice.

The petitioner, Theldor Lang, was convicted of rape and sentenced to life imprisonment in the State penitentiary by the Circuit Court of the Second Judicial District of Jones County at the regular September 1955 term of that court. Lang appealed to this Court and his conviction was affirmed on May 14, 1956, as reported in 87 So.2d 265, which case bears the same number as this petition. Suggestion of error was overruled by this Court on June 28, 1956. Thereafter Lang filed in the Supreme Court of the United States a petition for writ of certiorari, which was denied on December 10, 1956. 352 U.S. 936, 77 S.Ct. 236, 1 L.Ed. 167. Petitioner has now filed in this Court what he calls a 'motion for leave to file a motion for a new trial in the trial court, in the nature of a petition for a writ of error coram nobis.'

After setting forth the facts of his conviction and affirmance as herein stated, the petition alleges that at his trial in the circuit court Mrs. Edna Dreding testified that she was raped by a Negro in her apartment in Laurel, Mississippi, during the night of August 5, 1954; that she was awakened by an intruder who held a flashlight in her eyes and she was told not to make any noise; that the intruder told her that if she would submit to his demands, he would not hurt her baby, and that his 'buddy' had her baby in another room; that she looked and her baby was not in the room with her where it was supposed to be; that the intruder raped her; that the intruder then went into her living room and brought her baby back to her bed; that he then left through her front door; that her assailant was a light colored Negro, about five feet two or three inches tall, not more than five feet six inches, and weighed between 130 and 135 pounds. The petition further alleges that in the trial in the court below, the testimony of officer of the Laurel Police Department and the Jones County Sheriff's Office revealed that a screen window was removed from the living room of Mrs. Dreding's apartment and finger prints were found on the window ledge; that Mrs. Dreding's billfold was later found near the Masonite Corporation in Laurel; that in the trial below petitioner testified he was five feet ten inches tall and weighed 140 pounds, and that he was at work at the Mengel Company on the night when the crime was alleged to have been committed; that his payroll and time clock records were introduced to prove that he was at work on that night and received pay therefor.

The petition further alleges that a Mrs. Helen Sims was raped by a Negro in her apartment in Laurel, Mississippi during the night of June 15, 1956; that Mrs. Sims was awakened by an intruder who held a flashlight in her eyes and she was told not to make any noise and was also told that if she made an outcry he would kill her and her baby; that the intruder told Mrs. Sims that he had moved her baby into another room; that the baby was not in the room with Mrs. Sims where it was supposed to be; that the intruder then raped her after which he left by way of the back door to her apartment; that Mrs. Sims' assailant was a Negro who was shorter than she, and Mrs. Sims is five feet seven and one-half inches tall; that a screen window was removed from one of the windows in Mrs. Sims' apartment. The petition further alleges that one Leroy Moody, a Negro man 26 years old, five feet three inches tall, weighing 130 pounds, was arrested and thereafter confessed to the raping of Mrs. Helen Sims; that he was thereafter indicted for the crime, pleaded guilty, sentenced to life imprisonment by the Circuit Court of the Second Judicial District of Jones County, Mississippi.

The petition further alleges that the fingerprints found on the window ledge in the apartment of Mrs. Edna Dreding, after she complained of being raped on August 5, 1954, were, after the apprehension of Leroy Moody, identified by experts as being the fingerprints of the said Leroy Moody.

It is further alleged in the petition that at the time of the rape of Mrs. Edna Dreding on August 5, 1954, Leroy Moody was employed at a service station directly across the street from the Masonite Corporation in Laurel, Mississippi; that Mrs. Dreding's billfold, which was taken from her apartment on the night she was raped on August 5, 1954, was found at a point fifty or sixty feet from the service station at which the said Leroy Moody was employed; that said billfold, when taken from Mrs. Dreding's apartment, contained her wedding ring, which wedding ring was on November 5, 1956 found in the possession of Ernestine Moody, the wife of Leroy Moody, and the ring was identified by Mrs. Dreding; that Ernestine Moody made conflicting statements regarding her possession of the ring, saying that (1) she bought the ring and that Leroy Moody did not know anything about it; (2) that her grandfather in St. Louis had given her the ring, and (3) that Leroy Moody had given her the ring on or about August 27, 1954; that Leroy Moody stated to the officers that he had obtained the ring from a man he did not know while working at the service station across from the Masonite Corporation.

It is stated in the petition that the facts hereinabove stated were not known to the petitioner and his attorneys until during the month of December 1956, and could not possibly have been known to petitioner or his attorneys at the time of the trial by the exercise of due diligence; that the facts are material to the issues in petitioner's case and tend to establish the guilt of Leroy Moody to the crime for which petitioner was tried and convicted, and when these facts were considered with the rest of the testimony in petitioner's case tend to leave a very serious doubt as to petitioner's guilt, and would probably change the result if a new trial was granted, and that such facts are not merely cumulative, nor do they tend to impeach the testimony of any witness who testified at petitioner's trial.

Petitioner then prays that he be granted leave to file a motion for a new trial in the trial court on the ground of newly discovered evidence set forth in summary form hereinabove.

Attached to the petition is the affidavit of Theldor Lang and of the attorneys for Theldor Lang, in which oath is made that they believe the facts set forth in the petition are true and that such matters and facts were not known to petitioner or the attorneys at the time petitioner was tried in the Circuit Court of the Second Judicial District of Jones County, and could not possibly have been known to petitioner or said attorneys by the exercise of due diligence. Also attached to the petition is the affidavit of C. Wayne Valentine, Chief of Police of the City of Laurel, Mississippi, who investigated the complaint of Mrs. Edna Dreding at the time she complained of being raped on August 5, 1954, and also investigated the complaint of Mrs. Helen Sims that she was raped during the night of June 15, 1956. The substance of Chief Valentine's affidavit is set out in the petition. Chief Valentine was available in this Court when this petition was presented, reay to testify to the truthfulness of the petition. Inasmuch as no issue was made as to the truthfulness of the petition, this Court did not request any oral testimony.

The State filed an answer admitting, in substance, the allegations of the petition but says that the effect of the newly discovered evidence would amount to no more than additional evidence on the issues thoroughly litigated in the trial court, and moved the court to deny the petition.

It will be observed that the relief sought by this petition is based on newly discovered evidence. If we treat the petition as one for the writ of error coram nobis, we would be required to deny the petition. It has been repeatedly held that the writ of error coram nobis can not be invoked for newly discovered evidence going to the merits of the issues tried in the court below. Wetzell v. State, Miss., 76 So.2d 194; 24 C.J.S., Criminal Law, Sec. 1606, pp. 149-150; 49 C.J.S., Judgments, Sec. 312, pp. 567-568; 31 Am.Jur., Judgments, Sec. 804; Annotation, 1924, 33 A.L.R. 84; Fugate v. State, 85 Miss. 94, 37 So. 554; Cummins v. State, 144 Miss. 634, 110 So. 206; White v. State, 159 Miss. 207, 131 So. 96; Powers v. State, 168 Miss. 541, 151 So. 730; Buckler v. State, 173 Miss. 350, 161 So. 683; Roberson v. Quave, 211 Miss. 398, 51 So.2d 62, 777; Wheeler v. State, 219 Miss. 129, 70 So.2d 82.

We need not discuss further the writ of error coram nobis except to say that if a simple motion or petition, a procedure that could easily be understood by the bench and bar, had displaced the writ years ago it would have saved considerable confusion and better served the administration of justice.

Petitioner brought this proceeding under Chapter 250, Mississippi Laws of 1952, which provides:

'Section 1. Except as hereinafter otherwise provided, the writ of error coram nobis, and the procedure therefor, as heretofore defined by the decisions of the supreme court of this state, is hereby recognized by statute.

'Section 2. In all cases wherein a judgment of conviction in a criminal prosecution her been affirmed on appeal by the supreme court, no petition for the writ of error coram nobis shall be allowed to be filed or entertained in the trial court unless and until the petition for the writ shall have first been presented to a quorum of the justices of the supreme court, convened for said purpose either in term time or in vacation, and an order granted allowing the filing of such petition in the trial court.

'Section 3. No application for leave to file a petition for the writ shall be heard or considered by the court except on...