Mitchell v. State

• Decision Date: 05 March 1962
• Docket Number: No. 4950,4950
• Citation: 354 S.W.2d 557,234 Ark. 762
• Parties: Lonnie B. MITCHELL, Petitioner, v. STATE of Arkansas, Respondent.
• Court: Arkansas Supreme Court

Page 557

354 S.W.2d 557

234 Ark. 762

Lonnie B. MITCHELL, Petitioner, v. STATE of Arkansas, Respondent.

No. 4950.

Supreme Court of Arkansas.

March 5, 1962.

C. C. Mercer, Jr., Little Rock, for petitioner.

J. Frank Holt, Atty. Gen., by Thorr Thomas, Asst. Atty. Gen., for respondent.

McFADDIN, Justice.

This is an original application filed in this Court for permission to file a Writ of Error Coram Nobis in the Union Circuit Court for inquiry as to Mitchell's sanity at the time he was tried and convicted in that Court. ¹

This is the fourth time this man Lonnie Mitchell has been in litigation in this Court. The first case was Mitchell v. State (Case No. 4950, decided September 21, 1959), 230 Ark. 894, 327 S.W.2d 384, in which we affirmed the conviction of Mitchell for rape. The second case was Mitchell v. State (Case No. 4984, decided September 12, 1960), Ark., 337 S.W.2d 663, in which we held that the Circuit Court of Union County had no jurisdiction to hear a Motion to Vacate the Judgment of Conviction in the first case, since this Court had not reinvested the Circuit Court with such jurisdiction. The third case was Mitchell v. State ex rel. Henslee (Case No. 5-2328, decided May 8, 1961), Ark., 346 S.W.2d 201, in which we affirmed the judgment of the Circuit Court of Jefferson County which had dismissed Mitchell's Petition for Writ of Habeas Corpus.

The present (fourth) case was filed in this Court on July 3, 1961, and is an 'Application for Permission to File Petition for Writ of Error Coram Nobis.' This application is filed in this Court because we affirmed the first case, thereby acquiring jurisdiction; and the Circuit Court cannot hear a Writ of Error Coram Nobis in a case appealed to this Court until we grant such permission. State v. Hudspeth, 191 Ark. 963, 88 S.W.2d 858. The said application filed herein by the attorneys ² for Mitchell alleges:

'2. Petitioner avers and verily believes that he was insane at the time of the commission of the offense for which he is now convicted.

'3. Petitioner avers and verily believes that not only was he insane at the time of the crime for which he was convicted and is now committed, but that he was insane at the time of the trial wherein he was convicted and sentenced to death, and further that he is presently insane.

'4. Petitioner did not have a mental examination prior to his trial, and has been repeatedly refused permission to have a private psychiatrist examine him, and Petitioner honestly feels that a mental examination by a private psychiatrist is absolutely necessary so as to afford appellant an opportunity to be heard.

'5. Petitioner's insanity was not known at the time of the trial, (1) and such fact was not then suggested, (2) or raised in issue by either of the parties hereto; Petitioner avers that he did not have the mental capacity to so apprise the trial court of his mental condition.

'6. That no other remedy is available to Petitioner to review and inquire into the question of his insanity at the time that the crime was committed, and also as to his insanity at the time of the trial, except the remedy as provided by a writ of error coram nobis.'

In Jenkins v. State, 223 Ark. 245, 265 S.W.2d 512, we held that we would not grant permission to file a Writ of Error Coran Nobis to inquire into the accused's sanity at the time of the offense or at the time of the trial when the record on which was affirmed the conviction showed that the accused's sanity was a matter considered at the trial when he was convicted. But we have repeatedly held, as stated in Hydrick v. State, 104 Ark. 43, 148 S.W. 541:

'This court has repeatedly held that, after the expiration of the term at which a judgment of conviction was rendered, the court may, upon proper showing of insanity of the accused at the time of the trial, which was not suggested at the trial, issue the writ of error coram nobis for the purpose of inquiring into that question, * * *' ³

In 24 C.J.S. Criminal Law § 1606, p. 149, cases are cited to sustain this textual statement:

'Insanity. Where, after the expiration of a term, it appears that the accused was insane at the time of the trial, which was not then known, the writ may be used to set aside and vacate the judgment.'

We have carefully checked the record in the first case (i. e., the original trial and conviction of Mitchell); and in that trial there was no mention, suggestion, or intimation of Mitchell's insanity at the time of the offense or at the time of the trial. The present application is unverified and is not supported by any affidavits; and we were on the verge of denying it as not filed in good faith, until Mitchell's attorneys filed in this Court on November 13, 1961, their motion to require the Superintendent of the Arkansas State Penitentiary to permit Mitchell to be examined by a private psyciatrist. The motion alleges in part:

'2. That the petitioner, through his attorneys, has on several occasions requested permission of the Superintendent of the Arkansas State Penitentiary, the aforesaid Lee Henslee, to have the Petitioner examined by a private psychiatrist but in each instance these requests have been denied ⁴ by the said Lee Henslee: the requests have extended over a period of more than a year and a half.

'3. That the petitioner, through his attorneys, has retained the services of a private psychiatrist to perform the examination, which services have been on a retainer all during the period that the requests have been made, but that no examination has been given...