Smith v. State, s. 42222

• Decision Date: 01 July 1964
• Docket Number: 42914,Nos. 42222,s. 42222
• Parties: William SMITH, Jr. v. STATE of Mississippi. William SMITH, Jr. v. C. E. BREAZEALE, Superintendent of the Mississippi State Penitentiary.
• Court: Mississippi Supreme Court

Page 432

166 So.2d 432

William SMITH, Jr. v. STATE of Mississippi.

William SMITH, Jr. v. C. E. BREAZEALE, Superintendent of the Mississippi State

Penitentiary.

Nos. 42222, 42914.

Supreme Court of Mississippi.

July 1, 1964.

Appeal from Circuit Court, Madison and Sunflower Counties; Leon F. Hendrick (Madison) and Arthur B. Clark, Jr. (Sunflower), Judges.

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 appellees.

LEE, Chief Justice.

On motion to set new date for execution.

William Smith, Jr., in the Circuit Court of Madison County, was indicted, tried, convicted and sentenced to suffer death for the forcible rape of a fourteen year old girl about midnight July 29, 1961. On appeal, this Court affirmed. 139 So.2d 857 (April 9, 1962). A suggestion of error was overruled and the Supreme Court of the United States granted certiorari, December 17, 1962. 371 U.S. 939, 83 S.Ct. 323, 9 L.Ed.2d 274. That writ was, on May 13, 1963, dismissed as improvidently granted. 373 U.S. 238, 83 S.Ct. 1265, 10 L.Ed.2d 321. A new date of execution was set by this Court on July 12, 1963. 154 So.2d 110. Thereafter a petition for writ of habeas corpus was heard in the Circuit Court of Sunflower County, and a transcript thereof was filed in this Court on July 23, 1963. A motion for stay of execution, in the meantime, had been filed, and was, on July 9, 1963, granted. 155 So.2d 494. It was pointed out therein that habeas corpus was the wrong procedure and that Section 1992.5, Code of 1942 Rec., was the procedure to be followed in such a case. Both the habeas corpus appeal and the petition under Section 1992.5 were consolidated and considered together, with the result that the petition for habeas corpus was dismissed and the prayer of the petition under Section 1992.5 of the Code was denied. Miss., 158 So.2d 686 (December 16, 1963). Thereafter a petition for a writ of certiorari was sought from the Supreme Court of the United States; and on June 22, 1964, that Court denied such petition. 84 S.Ct. 1935.

The cause now recurs on motion of the Attorney General of the State, suggesting that a new date for the execution of the sentence is in order. Service of the motion has been made in accordance with the rules.

It therefore appears that the motion should be, and it is, sustained; and August 14, 1964, is hereby fixed as the date for the execution of the death sentence in...