Wetzel v. State, 39355
| Decision Date | 21 March 1955 |
| Docket Number | No. 39355,39355 |
| Citation | 225 Miss. 450,78 So.2d 774 |
| Parties | William A. WETZEL v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Howard McDonnell, Biloxi, for appellant.
J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Gen., for appellee.
On December 6, 1954, as shown in 76 So.2d 188, this Court in the above-styled cause, affirmed the judgment of conviction and sentence of death rendered by the trial court against William A. Wetzel for the murder of Edgar G. (Sonny) McGraw. On that same day we denied the petition of the appellant for a writ of error coram nobis, which was filed pending the consideration of the appeal of the case on its merits. 76 So.2d 194.
In this first petition, filed before the affirmance of the case on its merits as aforesaid, it was alleged that some of the prosecuting attorneys had knowingly suppressed testimony during the trial of Wetzel before a jury that would have been favorable to him, and also used perjured testimony against him. That petition was supported by an affidavit of one Captain W. R. Dye and the affidavit of the appellant, William A. Wetzel.
The district attorney of the district wherein the case was tried, the county attorney of the county from which the appeal was taken, the Attorney General of the State of Mississippi, and the district attorney from the district from which the victim of the homicide, Edgar G. (Sonny) McGraw, had been sent to the state penitentiary, all participated in the prosecution. The affiant, W. R. Dye, who made the specific charges in his affidavit, stated therein that he was unable to give the names of the two prosecuting attorneys, who, he was alleging, had been guilty of this alleged offense. No counter-affidavits were filed in that proceeding, presumably for the reason that no particular prosecuting attorney had been named as being guilty of this alleged offense.
After the conviction and death sentence was affirmed by this Court on December 6, 1954, the appellant Wetzel filed another petition on January 12, 1955 under Chapter 250, Miss.Laws 1952, designated as 'Application for Leave to File Petition for Writ of Error Coram Nobis.' This statute establishes the procedure to be followed in seeking a writ of error coram nobis after affirmance by this Court on appeal. The decision of this Court on the second petition is reported in 76 So.2d 846 847, and our opinion states that this decision 'raises the same questions which were presented to this Court, and decided by it in the first petition for writ of error coram nobis dealt with in 76 So.2d 194' with one minor exception to the effect that one Robert James, a fellow convict in the state penitentiary, would testify in support of the appellant's defense if he was granted a new trial. The decision on the second petition was rendered on January 17, 1955.
When the second application for leave to file a petition for a writ of error coram nobis was filed on January 12, 1955, the date for the execution of the death sentence had been fixed for January 20, 1955, as shown by the concluding paragraph of the opinion affirming the conviction of murder, reported in 76 So.2d 188. The attorney now representing the appellant Wetzel was on January 12, 1955, engaged in the performance of his duties as a member of the State Senate while the Legislature was then in session. He was to return to his home in Biloxi, Mississippi, on Thursday afternoon of January 13, 1955, in order that he might spend Friday and Saturday in the preparation of a case which was set for trial in the Federal District Court at Biloxi, Mississippi, on the following Monday, the City of Biloxi being located approximately 185 to 195 miles from the City of Jackson, Mississippi.
In view of the above-stated plight of the appellant's attorney, he requested that the Court act on this second petition immediately because thereof in order that if the same was denied he might prepare the necessary papers for an appeal to the Supreme Court of the United States before leaving Jackson on Thursday afternoon, January 13, 1955. A conference of all nine of the justices was called by the Chief Justice on either January 12th or the morning of January 13, 1955, when it was decided that this second petition should be denied for the reasons stated by the Court in its opinions reported in 76 So.2d 194 and 76 So.2d 846. The Chief Justice was authorized by the conference to notify appellant's attorney that this action had been taken and that an opinion would be prepared to that effect and would be rendered from the bench in open court on Monday morning of January 17th, at 9:30 o'clock, the Attorney General's office having waived three days' notice required to be given to that office prior to the consideration of this second petition.
Pursuant to the verbal notice given to appellant's attorney of the decision arrived at by the conference of all the justices, he prepared and left with the Chief Justice, before leaving for Biloxi, a petition for an appeal to the Supreme Court of the United States in forma pauperis, supported by...
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...115 So. 208; Thompson v. State, 1954, 220 Miss. 200, 70 So.2d 341; Wetzel v. State, 1954, 225 Miss. 450, 475-476, 76 So.2d 188, 194, 846, 78 So.2d 774, 84 So.2d 429, 91 So.2d We think the circuit judge properly handled this unanticipated response and adequately protected appellant's rights ......
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