Rogers v. State

• Decision Date: 15 January 1962
• Docket Number: No. 42221,42221
• Citation: 136 So.2d 331,243 Miss. 219
• Parties: Basel ROGERS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 331

136 So.2d 331

243 Miss. 219

Basel ROGERS v. STATE of Mississippi.

No. 42221.

Supreme Court of Mississippi.

Jan. 15, 1962.

Roy J. Goss, Phillip Singley, Columbia, for appellant.

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

GILLESPIE, Justice.

This is an appeal from a judgment dismissing the petition of Basel Rogers for a writ of error coram nobis. The petition was heard before a disinterested judge, the Honorable Tom P. Brady, upon certification of the Honorable Sebe Dale, Circuit Judge of Marion County, that he was disqualified.

A brief history of this litigation is necessary to understand the issues. Sheriff J. V. Polk of Marion County was waylaid and murdered on April 22, 1960. Six persons, including Basel Rogers, appellant, were arrested and charged with murder. The Circuit Court of Marion County convened on June 13, 1960, and appellant and the others were promptly indicted, and on that day appellant entered a plea of guilty and was given a life sentence. On the afternoon of Saturday, July 2, 1960, appellant was brought before the Circuit Judge and permitted to withdraw his plea of guilty to murder and enter a plea of guilty to manslaughter, for which he was sentenced to a term of 17 years in the penitentiary. Court then adjourned. Appellant's brother employed an attorney the same day. On July 5, 1960, appellant filed a motion to be allowed to withdraw his guilty plea. This was overruled and appellant appealed to this Court, where the lower court was affirmed on the ground the motion was filed after court adjourned. Rogers v. State, 240 Miss. 135, 126 So.2d 512. Appellant then sought relief by habeas corpus and this was denied and it was pointed out that if any remedy was available to appellant, it was by petition for writ of error coram nobis. Rogers v. Jones, 128 So.2d 547.

Appellant then filed in this Court an application under Section 1992.5, Code of 1942, for permission to file in the Circuit Court of Marion County a petition for writ of error coram nobis. This Court sustained the application. Rogers v. State, Miss., 130 So.2d 856.

The petition involved on this appeal was then filed in the Circuit Court of Marion County, whereupon the Honorable Sebe Dale certified his disqualification and it was heard by the Honorable Tom P. Brady, who dismissed the petition. Appellant then perfected this appeal.

The petition and State's answer made up the issues which are the questions now before us for decision, as follows:

(1) Was the plea of guilty to the charge of murder the result of promises and persuasion on the part of the Circuit Judge?

(2) Did the appellant have the benefit of counsel as provided by Section 2505, Code of 1942?

The question here is not whether appellant is guilty of murder, but it is appropriate to state that the record clearly indicates that Hillary Thornhill was the principal instigator of the crime. Willie McCain was the actual killer. We are not called upon to decide whether the record is sufficient to sustain appellant's conviction, but the record indicates that appellant was on the fringe of the conspiracy. The Circuit Judge's own testimony indicates he thought appellant was 'sucked' into the crime by Hillary Thornhill.

Since the trial judge denied the writ the facts must be stated in the light most favorable to the State. In order to give the State the full benefit of the fact that all conflicts in the testimony were resolved against appellant, we decide the case on the testimony of Judge Dale, the testimony of Attorney Ben Rawls, and minor facts which are not in dispute. The testimony of Judge Dale alone is sufficient to require a reversal of the case and the granting of the writ.

Shortly after appellant was charged with murder, Mrs. Marvin Chance, appellant's sister, talked to Judge Dale at church, and Judge Dale told her to talk to the district attorney because he was not in a position to do so. Then Marvin Chance, appellant's brother-in-law, talked to him and Judge Dale told him to talk to the district attorney. Nevertheless, the brothers, sisters and brother-in-law of appellant continued to talk to Judge Dale, at church, at his home, his office, at Marvin Chance's place of business, and once at Goss, Mississippi, where Chancey Rogers, appellant's brother, lived. They came to see the Judge and he went to see them. It clearly appears that Judge Dale kept up with the investigation, although he did not take part in the activity. He knew the contents of a statement appellant had made to the district attorney. The judge knew of a 'plot' on the part of all the defendants to plead not guilty and require the State to try all the defendants.

Judge Dale testified he talked to appellant's 'kinfolks--upwards of fifty times,--there was so many times, I have no recollection of it.'

In the earlier discussions between Judge Dale and appellant's kinfolks, Judge Dale repeatedly told them he could not and would not make them any promises. Judge Dale testified that they were begging him for help and he told them that out of his experiences he could tell them what to do to help themselves. Judge Dale told them appellant had signed a statement and he, Judge Dale, knew what was in it, and that appellant would be indicted for murder. Judge Dale advised them as to the legal effect of one who takes part in planning a murder. He testified further: 'If you're asking for help out of my experience in what they got coming to them if I were in their place--and this is just what I told them--If I were in their places--in Basel's place, I'd walk up to the desk and I'd plead guilty because the Judge is not going to sentence a man to die.' Judge Dale told them that 'he can ingratiate himself with the people of Marion County if he'll get up there and tell the truth about it.'

A few days before court convened, the Judge went to see Marvin Chance and told Chance, 'Marvin, court begins next Monday. You all been telling me you wanted help and you were going to do something. What are you going to do about it? And I said, let us know because we are going to need to know.' The Judge was referring to whether appellant would plead guilty. The Judge then told Chance about the 'plot' for all the defendants to plead not guilty.

The Judge then said to Marvin Chance: 'Now Hill (Thornhill) sucked you into it--you all going to let them get you into it again? Tell us what you're going to do.' On Thursday before court convened, Judge Dale went to Goss, Mississippi, to see Chancey Rogers, appellant's brother, and said to Chancey Rogers: 'Now, Chancey, this thing is coming to a showdown and you all been begging for help. I can't help you except within the frame-work of the law but I can tell you out of my experiences how you can help yourselves, and I says, And that is if he's faced with it he's going to be indicted for murder and he's going to be tried,--arraigned on a charge of murder. He's got a chance pleading guilty, he's got a chance pleading not guilty, and I said, That's up to him and if he pleads guilty I'll give him a life sentence because I am not going to sentence any man to death on a plea of guilty because I'd assume he's crazy--if he walked up and asked me to put him to death. I said, I'd just give him a life sentence. We talked on and I said, His chance if he gets life sentence--if he gets life sentence he--he will have to serve ten years to be eligible for probation and parole. That eligibility and his getting it depends on his conduct up there. I said, Now, that's the law, but I said, You know how the people in Marion County are, they'll help you right along. If Basel and Desolee would show themselves sorry for what they've done and want to make amends for what they done and try to help for what they done, I said, It wouldn't be long before people would be helping them get out, and I said, Now, Marvin--Chancey, this is one other thing, if Basel has to go to the penitentiary we have let some of them go without waiting for the prison wagon, we've let some of them's people take them up there and carry them to prison and let them go, and I said, When they do they enter almost as a half trusty and if that comes and you all want to I'll let you all take Basel and carry him to the penitentiary or let him catch a bus--let you all pay bus fare and carry him, and that is the only thing in this world I ever mentioned about anything--any kind of help.'

On Friday before court convened on Monday, Marvin Chance told Judge Dale that appellant would not plead guilty and the Judge replied: 'Well, that's their business.' The Judge testified that he then told Marvin Chance that some of the other prisoners were wanting to testify against appellant and that they were 'anxious to talk.' Chance then began to beg, 'Don't let them testify against--Basel,' and asked the Judge to give him until nine o'clock the next morning and he (Chance) would 'make them do something.' Chance did report to the Judge the next morning that appellant would plead guilty. The Judge asked Chance if appellant was going to hire a lawyer or should he appoint one, and Chance told the Judge to appoint one. After testifying that he told Marvin Chance that the plea of guilty was without promises or 'strings' attached, the Judge said this:

'Marvin, I want to tell you something but this is something that ought not be mentioned perhaps and whatever you do you must not mention it to any...