Smith v. State

• Decision Date: 16 December 1963
• Docket Number: 42914,Nos. 42222,s. 42222
• Citation: 158 So.2d 686
• Parties: William SMITH, Jr. v. STATE of Miss. William SMITH, Jr. v. C. E. BREAZEALE, Supt., Miss. State Penitentiary.
• Court: Mississippi Supreme Court

Page 686

158 So.2d 686

William SMITH, Jr. v. STATE of Miss.

William SMITH, Jr. v. C. E. BREAZEALE, Supt., Miss. State Penitentiary.

Nos. 42222, 42914.

Supreme Court of Mississippi.

Dec. 16, 1963.

R. Jess Brown, Jackson, Melvin L. Wulf, New York City, for appellant.

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

JONES, Justice.

A conviction of rape with death sentence was affirmed by this Court on April 9, 1962. 139 So.2d 857. After our overruling the suggestion of error, the Supreme Court of the United States granted petition for certiorari on December 17, 1962, 371 U.S. 939, 83 S.Ct. 323, 9 L.Ed.2d 274. On May 13, 1963, the writ was dismissed as improvidently granted, 373 U.S. 238, 83 S.Ct. 1265, 10 L.Ed.2d 321. On June 3, 1963, on motion by the State, July 12, 1963, was set as date for the execution of the sentence, 154 So.2d 110.

Thereafter a writ of habeas corpus was sought in the Circuit Court of Sunflower County. The writ was ordered issued but after a full hearing was discharged on July 3, 1963. An appeal was undertaken and a complete transcript and record of such hearing was filed in this Court on July 23, 1963.

Prior to the filing of such record and during the early part of July a motion for stay of execution was filed and on July 9, 1963, granted. 155 So.2d 494. This Court, in the opinion granting the stay, noted that habeas corpus was the wrong procedure and that Sec. 1992.5, Miss.Code of 1942, prescribed the procedure available to petitioner. The stay was granted so that petitioner might proceed under said section. On August 29, 1963, petitioner filed in this Court his petition under Sec. 1992.5 of the Code.

On September 6, 1963, the State filed a motion to consolidate the habeas corpus appeal and the motion or petition under Sec. 1992.5 of the Code. As stated by counsel for petitioner in their brief herein, the motion to consolidate was unopposed, and was sustained.

So the matter comes before us, with at least the acquiescence of petitioner, on the petition under Sec. 1992.5 with the complete record in the habeas corpus hearing for consideration therewith.

A comparison of the petition for writ of habeas corpus with the petition here filed under Sec. 1992.5 discloses that each and every question presented by the petition under Sec. 1992.5 was also before the Court in the petition for writ of habeas corpus, so that the range in the testimony in the habeas corpus proceeding was the same as it would be if the prayer of the other petition were granted here.

In the proceedings before the circuit judge on habeas corpus, the petitioner, Willie Smith, Jr., testified fully, as did his wife and his mother-in-law. They testified in support of the petition for habeas corpus, or in an attempt to establish the right for the writ of habeas corpus. For the respondent in that petition, William B. Noble, the Sheriff of Madison County, testified fully, as did Richard E. Stone, a Deputy Sheriff of Madison County, J. R. Gilfoy, Sheriff of Hinds County, Sam Ivy with the State Safety Patrol, who testified as to the confession. Jack M. Greaves, the attorney appointed to represent the defendant, testified fully about all of his actions, his handling of the case, the reasons therefor, and disclosed wisdom and knowledge that could only be acquired by one that had been engaged actively in the practice of criminal law and the trial of cases for many years. The father-in-law of petitioner was also introduced and testified. After the...