Rogers v. Jones

• Decision Date: 27 March 1961
• Docket Number: No. 41872,41872
• Citation: 240 Miss. 610,128 So.2d 547
• Parties: Basel ROGERS and Desolee Thornhill v. Fred JONES, Superintendent of Mississippi State Penitentiary.
• Court: Mississippi Supreme Court

Page 547

128 So.2d 547

240 Miss. 610

Basel ROGERS and Desolee Thornhill v. Fred JONES, Superintendent of Mississippi State Penitentiary.

No. 41872.

Supreme Court of Mississippi.

March 27, 1961.

Philip Singley, Roy J. Goss, Columbia, for appellants.

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

RODGERS, Justice.

The petitioners, Basel Rogers and Desolee Thornhill, filed their petition for writ of habeas corpus against Fred Jones, Superintendent of the State Penitentiary, in the Circuit Court of Sunflower County, alleging that they were wrongfully sentenced to the state penitentiary from the Circuit Court of Marion County, Mississippi, on a charge of manslaughter. Petitioners allege that they were caused to plead guilty to the charge upon a promise made by the circuit judge, communicated to the petitioners through an intermediary, that petitioners would be permitted to plead guilty to a lesser charge and would receive a suspended sentence. Petitioners charge that their attorney was not present and that petitioners were brought into the court and advised by the circuit judge that they could either plead guilty to the charge of manslaughter or that the former life sentence would be imposed upon the relators, and that they under the circumstances entered their plea of guilty.

The facts in this case have been submitted to this Court heretofore, on a motion asking the Circuit Judge of Marion County to permit the defendants to withdraw their pleas of guilty, and we dismissed the appeal because the motion was filed after the Circuit Court of Marion County had adjourned. See Rogers v. State, Miss., 126 So.2d 512.

The Circuit Judge of Marion County dismissed the motion to be permitted to withdraw defendants' plea of guilty on the 8th day of July, 1960, and the defendants filed their petition for habeas corpus in Sunflower County on the 19th of July, 1960. The appellants prosecuted their appeal to this Court from the order disallowing appellants' motion to withdraw their plea of guilty and at the same time filed a petition for habeas corpus in Sunflower County. An answer was filed by the respondent Fred Jones, Superintendent of the Mississippi State Penitentiary, in which it was alleged that the petitioners were held by virtue of a lawful order of the Circuit Court of Marion County, Mississippi. A demurrer was filed in which it is alleged that the petition for writ of habeas corpus sets up matters that should have been heard on appeal and alleging that habeas corpus does not lie. The Circuit Judge after hearing the argument sustained the demurrer on the ground that the relators could appeal from the Circuit Court of Marion County, and dismissed the petition and the writ of habeas corpus theretofore issued. The petitioners then appealed to this Court from the order of the Circuit Judge, dismissing his petition for habeas corpus.

The question to be determined here is: Will a habeas corpus writ issue to release a prisoner from custody of the Superintendent of the Penitentiary upon the ground that the prisoners were fraudulently inveigled into entering a plea of guilty, at a time when their attorney was not present?

In the outset it should be noted that the right of an appeal is denied by law in any case where the defendant enters a plea of guilty. Section 1150, Miss.Code 1942, Rec. In the case of Cooper v. State, 175 Miss. 718, 168 So. 53, our Court held that a parolee could not appeal from an order of the Circuit Court revoking a suspended sentence, after he had plead guilty at a former term of the Court. The problem therefore is: Since there is no appeal from a plea of guilty, will the Court issue a writ of habeas corpus to release a prisoner who is unable to appeal on the ground that his plea was fraudulently obtained?

The statute (Section 2815, Code of 1942) is broad in its terms that 'the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty', but as was said in the case of Kelly v. Douglas, 164 Miss. 153, 144 So. 237: 'On the other hand, 'the authorities are uniform and very numerous in holding that the writ of habeas corpus cannot be made to perform the functions of a writ of error or an appeal'.' In the Kelly case the Court pointed out that it is only where a sentence is void, that the defendant can resort to the remedy of habeas corpus. This Court again pointed out in the case of McLemore v. Love, 197 Miss. 273, 19 So.2d 828, that 'where the proceedings are not absolutely void, either for lack of jurisdiction or other cause which is not the case here, the writ of habeas corpus cannot perform the functions of an appeal.' Citing State v. Boyd, 110 Miss. 565, 70 So. 692; Ex parte Golding, 148 Miss. 233, 114 So. 385; and Kelly v. Douglas, supra.

Moreover, Section 2816, Code 1942, prevents the writ from issuing to release a person convicted of a crime: 'Nothing in this chapter shall authorize the discharge of any person convicted of an offense, * * * nor of any person suffering imprisonment under lawful judgment.' The guilt or innocence of a defendant is not to be inquired into on habeas corpus hearing. See State v. Morgan, 114 Miss. 634, 75 So. 441.

The chief historical ground for the issuance of a habeas corpus writ and the release of a prisoner is the lack of jurisdiction on the part of the court to sentence or to hold the prisoner. We quote from 25 Am.Jur., Habeas Corpus, Sec. 26, p. 159: 'The tendency of the courts is to hold that unless the lack of jurisdiction appears clearly upon the face of the record, habeas corpus ought not to be granted to review an erroneous determination by a court that it has territorial jurisdiction over an offense, but that is the absence of exceptional circumstances calling for the issuance of the writ, and subject always to the discretion of the court to issue the writ where justice so demands, an applicant for habeas corpus, in such a case, will be left to his remedy by writ of error or appeal.'

Our Court pointed out in Donnell v. State, 1873, 48 Miss. 661, that 'Ont he trial of habeas corpus, sued out by a person committed, as appears by the return, by the sentence of a justice of the peace, it is competent for the relator to deny the existence of the sentence, the jurisdiction of the justice's court, or the constitutionality of the law under which said judgment and sentence were rendered; but, in such case, the relator cannot go into the evidence on which he was convicted, with a view to a revision of the question of his guilt. Such revision can occur only on an appeal.'

And although it is historically true that the writ of habeas corpus lay to determine whether a person under custody was restrained in accordance with law, still the question of what law to apply (even due process) is not a simple concept for his purpose. There is a sense, therefore, in which a prisoner is legally detained if he is held pursuant to a judgment or decision of a competent tribunal or authority, even though the decision detaining the prisoner rests only in error as to law or fact. The habeas corpus court could always inquire into the competency of the tribunal to determine whether or not it had jurisdiction to enter the judgment of conviction and whether or not the judgment authorized a detention of the prisoner. When, however, these inquiries were satisfied the function of the writ in the case of a convicted prisoner was at an end. This has been accepted as the law in the courts of this country until recent times.

The Supreme Court of the United States is apparently leaving the beaten path and charting a new course and deliberately creating a new concept in the field of habeas corpus. About 13 years ago in the case of Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 1594, 91 L.Ed. 1990, Mr. Justice Frankfurther in a dissenting opinion describes the federal habeas corpus practice as 'an untidy area of our law'. Since that time the U. S. Supreme Court under the 'due process' clause has expanded the federal jurisdiction over federal cases by simply expanding the concept of 'lack of jurisdiction' on the part of the sentencing court, and in at least one case, has frankly abandoned the 'lack of jurisdiction' touchstone concept, in habeas corpus cases. The Court has declared that the writ of habeas corpus 'extends also to those exceptional cases where the conviction has been in disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights.' See Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 966, 86 L.Ed. 1302.

The U. S. Supreme Court in the case of Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969, as late as 1915 held in accordance with the historical theory that the federal court could not examine the proceedings of a state court on a habeas corpus so long as it has been sustained by the appellate court of that state. This rule was repudiated, however, in the case of Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, in which the U. S. Supreme Court gave the prisoner the benefit of the ruling in Waley v. Johnston, supra, with reference to federal prisoners.

In 1952 the U. S. Supreme Court discussed four habeas corpus cases, the most important of which were Brown v. Allen, 344 U.S. 497, 73 S.Ct. 397, 97 L.Ed. 469, and Daniels v. Allen, Ibid., and from these cases it is apparent that the U. S. Supreme Court is now committed to the rule that a state prisoner is entitled to a full review of his constitutional rights by habeas corpus in the Federal District Court. That is to say, the state courts must not deny a prisoner of constitutional rights, and when this is done, it may be reviewed in the federal court on a writ of habeas corpus. See Goldsby v. State (Harpole), Miss., 123 So.2d 429.

In the case at bar the Circuit Judge sustained the demurrer to the petition for the reason that ...