White v. State
| Decision Date | 01 December 1930 |
| Docket Number | 28857 |
| Citation | 131 So. 96,159 Miss. 207 |
| Court | Mississippi Supreme Court |
| Parties | WHITE v. STATE |
1. CRIMINAL LAW.
Writ of error coram nobis does not lie to obtain new trial on ground of newly discovered evidence.
2. CRIMINAL LAW.
Matters of fact after trial, reviewable by appeal or upon motion must be presented by motion for new trial.
3. CRIMINAL LAW.
Defenses existing at commission of crime, accident and surprise verdicts against evidence, newly discovered evidence, etc cannot be made ground for application for writ of error coram nobis.
4. CRIMINAL LAW. Where circuit court declined to pass on application for writ of error coram nobis, Supreme Court was without jurisdiction to review action (Constitution 1890, section 146).
Under Constitution 1890, section 146, Supreme Court is an appellate court and is not a court of original jurisdiction, and the circuit court cannot abdicate any part of its judicial functions or duties In favor of Supreme Court or of any other court.
APPEAL from circuit court of Tishomingo county, HON. C. P. LONG, Judge.
J. C. White was convicted of petty larceny, and he appeals. On State's motion to strike part of record. Motion sustained.
Motion sustained.
T. A. Clark, of Iuka, for appellant.
This court has held in the case of Hawie v. State of Mississippi in 83 So. 158, that where the state demurs to a petition for a writ of error coram nobis in a criminal case that the state admits by said demurrer all facts well stated or pleaded.
Therefore the failure of the state to answer the petition and deny the allegations thereof is an admission of the facts as alleged in said petition, and that appellant should therefore be discharged.
Edwin R. Holmes, Jr., Assistant Attorney-General, for the state.
The circuit court had no jurisdiction to entertain the appellant's petition for writ of error coram nobis prayed for, for the reason that the petition was filed not only after the adjournment of the court but also after the case was appealed to this court and the appeal was perfected.
This case was on appeal to the Supreme Court at the time the appellant sought to have a writ of error coram nobis issued by the court below. It is the state's contention that as the Supreme Court then had the exclusive jurisdiction of this case on appeal, the court below had no jurisdiction whatever of the cause.
Fugates v. State, 85 Miss. 94; Holt v. State, 78 Miss. 631; Bennett v. State, 106 Miss. 103; Hoye v. State, 121 Miss. 197; Cummins v. State, 144 Miss. 634.
Upon the hearing in the lower court on the question of the issuance of the writ of error coram nobis the trial judge made no disposition of the writ either for or against the petition.
Granting for the sake of argument that the lower court had jurisdiction to entertain the application for the writ in question, it thereupon became the duty of such court to decide after a hearing, whether the application should be granted or denied. In this case the lower court decided nothing. The Supreme Court is exclusively a court of appellate jurisdiction.
Section 146, Mississippi Constitution.
Where the lower court had failed to decide a question presented to it, there can be no decision for this court to review.
The appellant was indicted and convicted in the circuit court of Tishomingo county of the crime of petty larceny, and was fined one hundred dollars and sentenced to sixty days in jail. From that judgment appellant prosecuted an appeal to this court.
The cause now comes on for hearing on the state's motion to strike from the record of the case volume 2, which embodies alone the proceedings in the circuit court on appellant's petition for a writ of error coram nobis.
At the January term, 1930, of the court, appellant was convicted. Within the time prescribed by law appellant notified the court reporter to transcribe his notes of the evidence, for the purpose of prosecuting an appeal from the judgment of conviction, and executed an appeal bond in due time, which was approved. The clerk certified the record up to the Supreme Court, which was then filed on May 9, 1930.
After adjournment of the term of the circuit court at which appellant was tried and convicted, and after the appeal to the Supreme Court had been perfected, and the record filed in that court, appellant filed in the circuit court a petition for a writ of error coram nobis, praying a new trial of the case, upon the ground of newly discovered evidence. The petition set out that the newly discovered evidence was material, and would have resulted in a verdict of not guilty if the jury had heard it; and that it was the fault of neither the appellant nor his counsel that...
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Petition for Writ of Prohibition, In re
...Miss. Const., Art. 6, § 146 (1890). 11 And see, e.g., State v. Keeton, 176 Miss. 590, 595, 169 So. 760, 762 (1936); White v. State, 159 Miss. 207, 211, 131 So. 96, 97 (1930); Yazoo & Miss. Valley R.R. Co. v. Wallace, 90 Miss. 609, 614-615, 43 So. 469, 470 (1907). In Mississippi there also i......
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Powers v. State
...at the time of the commission of the crime, as well as all verdicts against the evidence, and newly discovered evidence. White v. State, 159 Miss. 207, 131 So. 96; Cummins v. State, 144 Miss. 634, 110 So. Fugate v. State, 85 Miss. 94, 37 So. 554, 107 Am. St. Rep. 268, 3 Ann. Cas. 326. Appel......
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Rogers v. Jones
...been heretofore held that no appeal would lie to the Supreme Court from a refusal of the trial court to grant the writ (see White v. State, 159 Miss. 207, 131 So. 96) the court later said in the case of Wetzel v. State, 225 Miss. 450, 76 So.2d 188, 194, 846, 78 So.2d 774, 84 So.2d 429, 91 S......
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Buckler v. State
...Howie v. State, 121 Miss. 197, 83 So. 158; Carraway v. State, 163 Miss. 639, 141 So. 342; Powers v. State, 151 So. 730; White v. State, 159 Miss. 207, 131 So. 96. see: 34 C. J. 393; Fellows v. Griffin, 9 S. & M. 362; Corby v. Buddendorff, 98 Miss. 98, 54 So. 84. Coram nobis lies to reverse ......