Smith v. State, 42222

• Decision Date: 12 July 1963
• Docket Number: No. 42222,42222
• Parties: William SMITH, Jr. v. STATE of Mississippi. William SMITH, Jr. v. C. E. BREAZEALE, Superintendent, Mississippi State Penitentiary.
• Court: Mississippi Supreme Court

Page 494

155 So.2d 494

William SMITH, Jr. v. STATE of Mississippi.

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

Penitentiary.

No. 42222.

Supreme Court of Mississippi.

July 12, 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.

ETHRIDGE, Justice.

William Smith, Jr. (called petitioner or appellant), was convicted of rape, sentenced to death, and his conviction was affirmed by this Court. Smith v. State, 139 So.2d 857 (Miss.1962); see also 145 So.2d 688. After having granted his petition for writ of certiorari, the United States Supreme Court dismissed that writ as improvidently granted. Smith v. State of Mississippi, 373 U.S. 238, 83 S.Ct. 1265, 10 L.Ed.2d 321. On June 3 this Court set Friday, July 12, 1963 for the date of execution of the death sentence. Smith v. State, 154 So.2d 110 (Miss.1963).

On June 22 Smith filed in the Circuit Court of Sunflower County a petition for release on a writ of habeas corpus. The writ was issued, and that court, after hearing evidence, dismissed the petition for habeas corpus and discharged the writ, on the ground that appellant had failed to prove any of the material allegations of his petition. Smith filed notice of appeal to this court from that judgment of the circuit court.

The instant petition is for stay of execution of the death sentence, scheduled three days from today. We have concluded that it must be and it is hereby sustained, and execution of the death sentence, adjudged in Cause Number 42,222, is hereby suspended and stayed, subject to the subsequent conditions and limitations hereafter stated.

Appellant, by proceeding in the circuit court with habeas corpus, pursued the wrong post conviction procedure and remedy in Mississippi. In this state the writ of habeas corpus has a limited function: to inquire into the competency and jurisdiction of the tribunal and to determine whether or not it had jurisdiction to enter the judgment of conviction. This was fully considered recently in Rogers v. Jones, 240 Miss. 610, 128 So.2d 547 (1961), which held that habeas corpus did not lie to release prisoners upon the ground their pleas of guilty were fraudulently obtained at a time when their attorney was not present. See Rogers v. State, 243 Misc. 219, 136 So.2d 331 (1962). Rogers referred to the considerably broader application of habeas corpus in the federal courts, which extend the writ to a rehearing of cases where the conviction allegedly has been in disregard of the constitutional rights of the accused. Rogers further observed that the remedy of petitioner in that case, if any, lay in a proceeding under section 1992.5. Miss.Code 1942, Rec., Sec. 1992.5. This is by application to this Court for leave to file below a petition for writ of error coram nobis, or by remedy supplemental to coram nobis, under the Lang rule. Lang v. State, 230 Miss. 147, 170, 87 So.2d 265, 89 So.2d 837, 92 So.2d 670 (1957); ibid., 232 Miss. 616, 100 So.2d 138 (1958).

Smith's petition for habeas corpus charged an illegal arrest, an illegal search, a confession obtained involuntarily, no representation by counsel at preliminary hearing, and denial of effective assistance of counsel at his trial. The petition seeks a reexamination of his conviction on the merits and on constitutional grounds. Habeas corpus was not the proper procedure or remedy for Smith to use.

In 1952 the legislature took cognizance of the need to establish an adequate post conviction remedy, which at the same time would preclude retrial of criminal convictions on frivolous or improper grounds, and would prevent an unnecessarily broad and unwarranted use of habeas corpus for that purpose in the numerous trial courts of the state. Hence it enacted chapter 250, Mississippi Laws 1952. Miss.Code 1942, Rec., Sec. 1992.5. That chapter is entitled, 'An Act to prescribe the procedure for petitions for the writ of error coram nobis in cases of conviction which have been affirmed on appeal.' The statute was designed to 'prescribe' or determine 'the procedure' for post conviction remedies in such instances. It recognized the writ of error coram nobis and the procedures for it as defined by the decisions of this Court. Section 2 provides:

'In all cases wherein a judgment of conviction in a criminal prosecution has been affirmed on appeal by the supreme court, no petition for the writ of error coram nobis shall be allowed to be filed or entertained in the trial court unless and until the petition for the writ shall have first been presented to a quorum of the justices of the supreme court, convened for said purpose either in term time or in vacation, and an order granted allowing the filing of such petition in the trial court.'

Subsequent sections create a procedure for such a presentation to this Court, require an order allowing the filing of such petition in the trial court, prescribe a hearing thereon in the trial court, and a subsequent appeal.

In short, the intention of the legislature, by chapter 250, Laws of 1952, was to create a post conviction remedy which must be initiated in the Supreme Court, and to require, as a condition precedent to a second hearing in the trial court, an order of this Court allowing the filing of such petition in the trial court. Wetzel v. State, 225 Miss. 450, 76 So.2d 188, 76 So.2d 194, 846 (1955); 78 So.2d 774, 84 So.2d 429, 91 So.2d...