Mitchell v. State

Decision Date15 November 1937
Docket Number32896
Citation179 Miss. 814,176 So. 743
CourtMississippi Supreme Court
PartiesMITCHELL v. STATE

Suggestion Of Error Overruled December 6, 1937.

(In Banc.)

1. CRIMINAL LAW.

A writ of error coram nobis cannot issue except on notice to the opposite party.

2. CRIMINAL LAW.

Where an application under a petition for a writ of error coram nobis is made in vacation and such action is to be taken thereon as to strike from the judgment a material portion thereof, so that it will be necessary for the stricken portion to be restored by a subsequent judgment in term time a reasonable notice to other party is necessary to same extent that notice is necessary before the court can finally hear the petition on its merits.

3. CRIMINAL LAW.

On defendant's petition for a writ of error coram nobis stay of execution ordered by judge of another district than that in which conviction had been had, during the absence of the judge of that district on account of illness, without notice to the state, was unauthorized.

4. COMMON LAW.

The "writ of error coram nobis" is of ancient origin having been devised not by legislation but by the judiciary to meet certain extreme exigencies of justice, and is recognized in Mississippi as an existing common law remedy.

5. COMMON LAW.

The court must keep the common law and its processes of enforcement abreast with the substantial innovations of time proceeding upon established fundamental principles but profiting by the experiences and observations of the past.

6. JUDGMENT.

A judgment of a court of superior jurisdiction is res judicata of all issues involved in the record of the original trial which might have been litigated, particularly when as to a certain issue it was necessary for the court and jury to have decided such issue in order to warrant the verdict and judgment which were rendered.

7. JUDGMENT.

To warrant conviction for a crime, the judgment must comprehend the issues that accused both at time of commission of offense and at time of trial was of sufficient mental soundness to be held to criminal accountability and to be subject to a trial therefor, and hence, when a verdict of guilt and judgment of condemnation have been returned and entered, such action is res judicata of the issue of mental soundness.

8. CRIMINAL LAW.

A judgment or sentence may not be suspended for alleged insanity unless such insanity has developed since the trial.

9. CRIMINAL LAW.

Issues of defendant's insanity at time of commission of crime as well as at time of trial cannot be made the subject of a petition for a writ of coram nobis.

10. INSANE PERSONS.

An insane person can have no contractual agent, but he may have an agent appointed by law.

11. CRIMINAL LAW.

The law requires the court to appoint an attorney to defend in all capital cases when otherwise the defendant would have no attorney, and the acts of the attorney so appointed are binding on the defendant as the acts of defendant's agent when the acts are within the scope of the attorney's legitimate duties, whether defendant be sane or insane, and an attorney employed by the defendant or his relatives and accepted by the court occupies a position of no less importance.

12. CRIMINAL LAW.

Evidence held not to warrant suspending sentence of death for murder on ground of alleged negligence of defendant's attorney in failing to distinctly present plea of insanity on trial for homicide and alleged failure to prosecute such issue with proper vigor.

HON. JOHN M. KUYKENDALL, Judge.

APPEAL from the circuit court of Yalobusha county HON. JOHN M. KUYKENDALL, Judge.

William Clark Mitchell was convicted of murder, and he filed a petition for a writ of error of coram nobis which was denied, and he appeals. Affirmed.

Affirmed. Judgment affirmed.

W. I. Stone, of Coffeeville, and Creekmore, Creekmore & Capers and Barnett, Jones & Barnett, all of Jackson, for appellant.

It is our contention that the writ of error coram nobis having once been issued for the purpose of staying the execution and asking a hearing on the question of insanity is res adjudicata of the question of whether or not it did or did not wrongfully issue, because the date of execution has passed and that the five grounds urged by the State for the dismissal of the proceedings raised moot questions before the court at the July term.

It is our contention that at the July term Mitchell was called before the court for a sentence and at that time the trial court had before it evidence that a doubt did exist that the man was sane. Section 1310 of the 1930 Code makes provision that if the sheriff be satisfied that a convict in his custody under sentence of death is insane he shall with the concurrence of the circuit judge or other officer summons a jury of six physicians, if to be had, or other freeholders to make up an inquest to inquire into such insanity as the case may be. It was held in the case of Lewis v. State, 155 Miss. 810, 125 So. 419, that this section is not repugnant to the common law and was an additional remedy to the common law. Under the common law the writ of error coram nobis was the only means by which error of fact in the rendition of a judgment could be brought before the court and therefore, even conceding for the moment, for the purpose of argument, that the fiat issued by Judge Anderson was a nullity and void and should have been dismissed, if a motion had been presented prior to the date of execution from which a stay was made, nevertheless the date of execution having passed and the prisoner being called before the court again for re-sentence and a new judgment of death, the court should have taken up and in the exercise of a sound and humane judicial discretion, granted either another writ of error coram nobis, or impaneled a jury on the questions of sanity, or instructed the sheriff to proceed under Section 1310.

Indiana v. Killegrew, 174 N.E. 808; 3 Wharton, Criminal Procedure (10 Ed.), sec. 1857; 16 C. J. 1283, 1294, 1337.

Judge Anderson issued a flat which stated "You will issue the writ of coram nobis with stay of execution of the death sentence as prayed for in the attached petition for the sole purpose of determining . . . whether or not the petitioner was, at the time he was tried, and is now, insane," returnable to the next regular or special term of the circuit court of Yalobusha County. This fiat was an adjudication that a doubt existed on April 10, 1937, in the mind of Honorable R. B. Anderson, a circuit judge who, on April 10, 1937, under Section 742 of the 1930 Code, stood in the shoes of Judge Kuykendall. Judge Anderson's fiat was an adjudication. It is a well known rule of law that an adjudication as to mental soundness is evidence of the fact at the time of the adjudication, and also of the condition of the subject at a subsequent time upon the theory that a condition of mind once shown to exist is presumed to continue.

14 R. C. L. 621; 5 R. C. L., Perm. Sup., 3644; 7 A. L. R., 568.

We respectfully submit that the lower court in resentencing this man to death committed a grave error because it had before it an adjudication that a doubt did exist as to his sanity and the man would now be dead were it not for this appeal, and would have gone to his grave with a judicial doubt existing that he was sane.

The case of Hydrick v. State, an Arkansas case, 148 S.W. 541, held that where a properly submitted petition for a writ of error coram nobis to inquire into the sanity at the time of his trial of one convicted of murder in the second degree alleged that he was insane at the time of the trial and that such fact was not then suggested or known, it was error to dismiss the petition though the petitioner's conviction had been affirmed by the Supreme Court, we take it.

49 A. L. R. 804; 3 A. L. R. 94.

Judge Anderson under Section 742 of the 1930 Code had full power to act, as in the case of Butler v. State, 161 So. 685, it was held that the writ of error coram nobis was a remedial writ and could be issued by any judge under said section.

The general rule as to the trial on writs of error coram nobis is stated in 34 C. J. 401, as follows: "If the pleadings result in an issue of fact, such issue must be tried, if necessary, by a jury. Issues of law are tried by the court."

34 C. J., 399, 400.

When the circuit court convened the State did not demur to the petition, nor traverse the facts alleged therein, but moved to dismiss the writ, setting up five grounds as reasons therefor. These reasons have been discussed in the brief in chief but none of them challenge the legal sufficiency of the petition on which Judge Anderson granted the writ, nor do any of them take issue on the matters of fact alleged in the petition as reasons for the grant of the writ. On this motion testimony was taken before the court and the court, without the intervention of a jury, sustained the motion and dismissed the writ. This, in effect, if permitted to stand, is hanging a man on a motion. We have for years heard, as we thought in a humorous vein, the expression of "hanging a man on a motion," but we are now brought face to face with that in grim reality.

Tyler v. Morris, 34 Am. Dec. 395.

The petition and affidavits submitted to Judge Anderson did disclose probable grounds that Mitchell was insane at the time the judgment of conviction was rendered and Judge Anderson exercised his judicial discretion by granting the writ as he was authorized to do. The writ having been granted, the State should have pleaded that Mitchell was sane when tried and convicted and so have taken issue upon the fundamental fact assigned for error. This issue was not tendered.

Fellowes v. Griffin, 9 S. & M. 362; Chambers v. State, 158 So. 153; Section 26 of...

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