State ex rel. Smith v. Bomar
Decision Date | 10 May 1963 |
Citation | 16 McCanless 149,368 S.W.2d 748,212 Tenn. 149 |
Parties | STATE of Tennessee, ex rel. Henry SMITH, Jr., Plaintiff in Error, v. Lynn BOMAR, Warden, Tennessee State Penitentiary. 16 McCanless 149, 212 Tenn. 149, 368 S.W.2d 748 |
Court | Tennessee Supreme Court |
Mose J. Davie, Nashville, for plaintiff in error.
George F. McCanless, Atty. Gen., Henry C. Foutch, Asst. Atty. Gen., Nashville, for the State.
Henry Smith, Jr. was indicted, tried and convicted for the killing of the proprietor of a liquor store in Memphis, Tennessee on September 2nd, 1960 with a pistol while in the perpetration of a robbery. The jury found him guilty and sentenced him to death by electrocution. His motion for a new trial was overruled.
This conviction was appealed to this Court was upon consideration of the assignments of error set out therein the conviction was affirmed and the Court in so doing said:--'There is really no controversy about the facts.' The facts of the case were set out in the opinion, which appears in Smith v. State, 209 Tenn. 499, 354 S.W.2d 450. There was no appeal from this decision.
On February 15th, 1962, Henry Smith, Jr. filed his petition for the writ of habeas corpus in the Criminal Court for Davidson County, Tennessee, in which he stated that 'on or about the 27th day of January, 1961 he was found guilty of murder in the First Degree and murder in the preparation (perpetration) of a robbery'.
In the answer filed by the respondent it is set out that the defendant was represented by counsel in the trial of the case and by counsel on appeal to this Court which resulted in the opinion of the Court published as aforesaid.
It was further averred in the answer that the petitioner was arraigned on a warrant charging first degree murder on the 6th day of September, 1960. He was arraigned on an indictment on September 19th, 1960 before Judge Preston Battle of the Criminal Court for Shelby County.
It is a well settled proposition of law in this State that the writ of habeas corpus may not be used to make a collateral attack against a valid conviction and judgment and this is especially true when such verdict of the jury and the judgment of the Trial Court thereon has been reviewed and approved by our Court and found to be without error. Bomar v. State ex rel. Stewart, 201 Tenn. 480, 300 S.W.2d 885; State ex rel. Potter v. Bomar, 209 Tenn. 577, 354 S.W.2d 767. State ex rel. Marvin Holbrook v. Bomar, decided February 7, 1963, 210 Tenn. ----, 364 S.W.2d 887.
In the case of State ex rel. Holbrook v. Bomar, supra, 364 S.W.2d pages 888-889, the Court said:
'A petition for the writ of habeas corpus, seeking release of one imprisoned under a judgment, is not a direct, but a collateral attack upon such judgment, and cannot prevail unless such judgment is void. Giles v. State ex rel. Giles, 191 Tenn. 538, 545, 235 S.W.2d 24. (And citing other cases.)
Giles v. State ex rel. Giles, supra, 191 Tenn. 545, 235 S.W.2d 28.'
It is equally well settled in this State that the writ of habeas corpus may not be used as a substitute for or in lieu of an appeal. State ex rel. v. West, 139 Tenn 522, 201 S.W. 743; State ex rel. Underwood v. Brown, 193 Tenn. 113, 244 S.W.2d 168; State ex rel. Potter v. Bomar, supra; State ex rel. Holbrook v. Bomar, supra.
It appeared to us when this case was here on direct appeal that the petitioner herein, the plaintiff in error therein, was represented capably by competent counsel at the time of his trial and that all of his rights were fully protected by the Public Defender of Shelby County.
The petitioner herein claims that his constitutional rights were violated in some manner because a State witness made a remark to the jury that he had made a statement just after the deceased was killed 'that a Negro shot a White man'. This exact matter was dealt with in the opinion by this Court delivered by Mr. Justice Burnett, now Chief Justice, on behalf of the Court at page 505 of 209 Tenn., page 452 of 354 S.W.2d, where it is said:
Therefore, we think there could not be anything in this assignment.
The brief on behalf of the plaintiff in error herein, the petitioner below, makes this further contention.
The fallacy of this position is found in the history of the penalty for the crime of murder in the first degree. Chapter 23 of the Public Acts of 1829, which was an Act to reform and amend the penal laws of the State of Tennessee, provided by Section 4 thereof that:
'Every person convicted of the crime of murder in the first degree, or as accessary before the fact to such crime, shall suffer death by hanging by the neck.'
This Act was carried into the Code of 1858. By Chapter 36 of the Acts of 1913, First Extra Ordinary Session the method of executing the death penalty was changed from hanging to electrocution.
By Chapter 181 of the Public Acts of 1915 it was provided by Section 1 thereof:
'That the death penalty as punishment for crime be, and the same is hereby abolished, and in lieu thereof, and as a substitute therefor, shall be the punishment of life imprisonment in the State Penitentiary; provided, that this Act shall not interfere with the operation of statutes providing for the death penalty as a punishment for the offense of rape * * *.'
By Chapter 14 of the Public Acts of 1917 it was provided that Chapter 181 of the Acts of 1915, which abolished the death penalty as therein provided be and same was...
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