62 Miss. 158 | Miss. | 1884
delivered the opinion of the court.
In 1872, the relators, being in custody and under indictment for the murder of one Haygood, sued out writs of habeas corpus before the Hon. Robert Leachman, Judge, which, upon full examination, were decided against them, and they were recommitted to jail. Subsequently they broke jail and fled the country. During the present year they were found, re-arrested, and re-incarcerated. They now bring this present writ, demanding to be heard again .and discharged, notwithstanding that provision of our law which makes a decision on habeas corpus final and conclusive until appealed from and reversed. They base this demand upon the fact that since their former trial the law of evidence of this State has been so amended in criminal cases as to make all parties indicted •competent witnesses for themselves. Their contention is, that by their own testimony they can show their innocence of the crime charged against them, a thing which they heretofore failed to do only by reason of the fact that they were, a.t that time, incompetent witnesses.
The proposition, therefore, is to disprove guilt, not by reason of any new fact occurring since the former trial, but by introducing new testimony as to the old facts, the only reason urged for this demand being that they may produce evidence now for the first time admissible. Whatever merit there may be in this contention, it is at least nothing more than an attempt to obtain a new hearing upon the ground of newly discovered evidence; nor can it make any difference in principle whether this evidence is now first made legal, or whether it has been now for the first time discovered. It
But the distinct announcement has twice been made in this court that á second writ of habeas corpus can only be granted where some supervening fact has taken place which alters the substantial aspects of the case, and that it cannot be done merely upon the ground of newly discovered evidence. Whether such evidence could or could not have been discovered before by the exercise of diligence is wholly immaterial. To sustain the new writ there must be some new fact, which, happening since the former trial, has changed the legal attitude of the case; as by the finding of an indictment whereby the legal aspect is changed, or where, by a rais-trial before a petit jury, it may be plausibly argued that the legal presumption that the proof is positive or the presumption great has been negatived by the failure of the jury to agree. Ex parte Patterson, 56 Miss. 161; Ex parte Bridewell, 57 Miss. 171.
Judgment affirmed.
