176 So. 743 | Miss. | 1937
Lead Opinion
Appellant, a white man, was convicted of one of the most atrocious crimes ever committed in this state. For *822
the purpose of robbing an old negro of his savings, appellant entered the home of the negro, knocked him and his son into insensibility with a blackjack, and burned down their dwelling house upon them. From the conviction and sentence of death an appeal was taken to this court, which affirmed the judgment and sentence, as appears, with a fuller recital of the facts, in Mitchell v. State,
Upon the affirmance by this court, appellant applied to the Governor for relief, upon the plea that appellant was insane at the time of the commission of the offense, was insane at the time of the trial, and has ever since so remained. The Governor granted a reprieve, and put appellant under the examination of competent experts at the insane asylum who, after extended observations, pronounced appellant sane, and the Governor refused to further interfere with the sentence of the law.
Within a few days before the date fixed for the execution, appellant filed a petition for a writ of coram nobis, alleging therein as he had alleged before the Governor; and the circuit judge of the district wherein the conviction was had being absent from his district on account of illness, the petition was presented to the circuit judge of another district, who ordered a stay of the execution and directed the clerk to issue the writ of coram nobis for the sole purpose of determining at the next term of the circuit court the sanity of appellant.
The aforesaid order of the circuit judge which stayed the execution of the sentence embraced in the judgment was made and issued without notice to the state, that is to say, without notice to the Attorney General or to the district attorney. It is laid down in the authorities, as must be under fundamental principles, that a writ of error coram nobis cannot issue except on notice to the opposite party, Comstock v. Van Schoonhoven, 3 How. Prac. (N.Y.) 258, 261; Crawford v. Williams, 1 Swan (Tenn.) 341-343. It follows as a logical legal sequence that when an application under a petition of the nature *823 here under consideration is made in vacation, and such action is to be taken thereon as to strike from the judgment by that action a material portion thereof, so that it will be necessary for the stricken portion to be restored by a subsequent judgment in term time, there is involved something more than a mere supersedeas or injunction on which bond is required, wherefore a reasonable notice to the other party is necessary to the same extent that a notice is necessary before the court can finally hear the petition on its merits. The circuit judge, before whom the preliminary order of stay of execution was presented, was therefore without proper authority to order the stay in the absence of notice to the state of such application.
When the petition came on for hearing before the circuit court wherein the original judgment was rendered, the district attorney responded thereto by what he termed a motion to dismiss, but which in fact set up, among other things, a plea of res adjudicata, and the pleading was treated in substance as a plea or answer, both sides introducing evidence, both oral and documentary; including the transcript of the original trial; and at the conclusion the court denied the petition and fixed a date for the execution, and an appeal has again been brought to this court.
Since the rendition of the opinions of the court in Hawie v. State,
The writ of error coram nobis has come down to us from the days of long ago, even from those days when people still believed in witchcraft. It was devised, not by legislation, but by the judiciary, as a suitable method to meet some of the extreme exigencies of justice under a judicial system in many respects different from ours; but being found in a measure available for use amongst us, has been in some states, including ours, recognized as an existing common-law remedy, and this too by judicial decision and not by legislative enactment. The common law, however, both in its substantive and in its adjective features, is not now, never has been, and never will be, static or stagnant. It has been one of the proudest boasts of the common law that it has within itself the potency of steady improvement, and this by judicial action, so long as that action is in accord with existing fundamental legal principles. It is the duty of courts, as attested by numerous decisions in this court, and in all courts throughout the nation, not only to keep the common law and its processes of enforcement abreast, or nearly so, with the substantial innovations of time, with the higher moral and material attainments in the general progress of enlightened civilization, proceeding always, however, upon established fundamental legal principles, 12 C.J., pp. 178-180, section 5; Yazoo M.V. Railroad *825
Co. v. Scott,
It has long been a settled principle of the common law that a judgment of a court of superior jurisdiction is conclusive by way of res adjudicata of all those issues involved in the record of the original trial, and which, being so involved, might have been therein litigated. Hardy v. O'Pry,
To remove to the extent now deemed requisite the mischief which we have hereinabove mentioned, we take recourse to the better and fitter legal principle which we have outlined in the foregoing paragraph. We decline to follow further that line of cases found in some jurisdictions which hold, or apparently hold, that for the first time after conviction the plea of insanity may be raised, and thereby a new train of hearings and rehearings upon that issue may be put in motion, to end only when ingenuity *826
has been exhausted, or the money for defense is all spent. And we hereby overrule any and all of our previous cases to the extent that they, or any of them, are in conflict with what we are here laying down. It is only when the insanity has developed and become present since the trial that we leave the door open to suspend a judgment or sentence upon that issue — and we have no such alleged case here. We place the issue of insanity upon the same basis of fact as that found in Bennett v. State,
We have not overlooked the argument that the original trial was no trial at all, and therefore was without due process of law, because, as has been suggested, the attorney for appellant in the trial was negligent, and by reason thereof failed to distinctly present in that trial the plea of insanity, and failed to prosecute that issue with proper vigor; and we note also the contention that appellant is not bound by what the attorney did or failed to do in that trial it being urged that an insane man can have no agent and therefore no attorney. It is true that an insane person can have no contractual agent, but it is equally true that a person non compos mentis may have *827 an agent appointed by law. Numerous examples may be given of this fact, one of which is that service of process on an insane defendant may be made upon the superintendent of the insane hospital where the defendant is confined. The law requires the court to appoint an attorney to defend in all capital cases, when otherwise the defendant would have no attorney; and the attorney so appointed is the agent of the defendant within the scope of the duties of the appointee whether the defendant be sane or insane; and an insane defendant is as much bound by his attorney's actions, when within the legitimate scope of his duties, as if the defendant were sane, and an attorney employed by the defendant or his relatives, and accepted by the court, occupies a position of no less importance. If all this were not true, no trial could be had, and no authoritative judgment could be pronounced, where a defendant claimed to be insane; and no person so claiming could ever be punished for crime until he became ready voluntarily to submit to punishment, which introduces the obvious proposition that none of them will ever volunteer to be hung.
The entire record discloses that there is no just ground to aver that the attorney was negligent, even if that were here material. He had been employed some ten days before the trial, and he had with him the presence and assistance of members of appellant's family. He had information of all the deliberate circumstances of the planning of this robbery and murder, the cautious details of its execution, and the well-reasoned scheme of the flight into another state, where appellant remained hidden under an assumed name for more than three years and until he was detected and returned for trial. All that the attorney had before him, or upon diligence could ascertain, was that the defendant was a cruel, crafty, and designing murderer, with full sensibility at all times of the nature and consequences of his act, and of his accountability to the law therefor. Rather than take the risk of a plea of insanity which could not be sustained, the attorney *828 did the best he could, and produced the evidence of the defendant that he had no recollection of the crime, and the testimony of relatives that appellant suffered from periods of forgetfulness, hoping thereby to avoid the extreme sentence of death; and that the jury rejected the bid for mercy was no fault of the attorney.
Affirmed, and Friday, December 17, 1937, is fixed as the day of execution.
Affirmed.
Addendum
This is a proceeding in which the appellant made an unsuccessful attempt in the court below to have a judgment convicting him of murder, and sentencing him to death, vacated, and he be granted a new trial. He was convicted and sentenced on January 22, 1936, and on an appeal therefrom the judgment was affirmed,
The allegations of the petition were verified by the oath of the attorney who represented the appellant at his trial, and as to the appellant's insanity by the oath of a physician. Evidence was also presented to the judge, who thereupon issued his fiat or order, directing the clerk of the court below to issue a writ of error coram nobis, with stay of execution of the death sentence as prayed for. No writ of error coram nobis was issued on this fiat, and as this court has heretofore said, it was not necessary so to do. The clerk did issue a writ directed to the sheriff, commanding him not to execute the appellant pending the hearing and determination of his application for vacating his judgment of conviction. The petition and its supporting affidavits, and the judge's fiat thereon, were then filed in the court below, and the day set for the execution of the appellant passed without his being executed. No notice was given either the district attorney or the attorney general that this petition would be heard by Judge Anderson, or of its filing in the court below. The district attorney, however, appeared when the court below convened, and filed a motion to quash the writ of error and dismiss the petition, which, stripped of its irrelevancies, alleges six grounds for dismissing the petition, three of which are, in effect, demurrers; and three are, in effect, pleas in bar of the petitioner's right to have the judgment vacated. The pleas in bar are: (1) "Due diligence is not shown on the part of William Clark Mitchell and his attorneys;" (2) Mitchell's insanity vel *830 non at the time of his trial is res adjudicata; "that said defense was offered at the time of said trial, evidence introduced in support thereof, and the trial jury was instructed in regard to such matter and such defense, said defense was passed on and refuted by the said trial jury in its verdict of `guilty as charged,' as is shown by the record of said trial;" and (3) "the defense of insanity was also raised by the defendant and his counsel in the Supreme Court of the State of Mississippi," as appears from the brief filed for him in that court on the appeal thereto.
Without further pleading, the case proceeded to trial before the judge of the court without a jury, and the district attorney and counsel for the appellant introduced parol and documentary evidence. The motion was then sustained, the petition was dismissed, and a new date was fixed for the execution of the sentence, in accordance with section 1311, Code of 1930.
I shall not pause to follow counsel in their attempt to ascertain when the common-law writ of error coram nobis will lie, and the procedure therefor. My experience, observation, and information acquired from reading judicial opinions justify me in saying that lawyers and judges who now attempt to deal with the archaic writ of error coram nobis, which had become obsolete in England before Blackstone wrote his Commentaries, become lost in the mist and fog of the ancient common law, and are unable to ascertain what there was the exact effect of and procedure for obtaining such a writ. Interesting but not entirely successful efforts to ascertain these facts appear in Fugate v. State,
What is said to have occurred in the Supreme Court on the appeal to it from the judgment of conviction, of course, has no bearing on the question presented by the motion to vacate the judgment. If Mitchell was insane when the motion for vacating the judgment was filed, no ground would thereby be presented for vacating the judgment, nor for suspending the execution of his sentence, unless it was made to appear that he became insane since the judgment was rendered; and such does not appear from this petition, or the evidence introduced in support of it. Lewis v. State,
It is said that the judge who granted the writ of error coram nobis, and suspended the execution of the appellant's sentence, should have not so done unless and until *832
notice of the application therefor had been given the district attorney or the attorney general. According to 1 Archbold's Practice, page 277 et seq., no notice was necessary at common law of an application for a writ of error coram nobis, or for an order suspending the execution of the judgment until the application for vacating the judgment complained of could be heard. All that was necessary was for the opposing party to be notified before the application for vacating the judgment was heard on its merits. No notice was here given to the district attorney or the attorney general of the motion to vacate the judgment, but that fact is of no consequence, for the reason that the district attorney appeared and was heard thereon. When a motion is filed, properly verified, and setting forth a prima facie case for vacating a judgment imposing the death penalty, with or without a writ of error coram nobis, if a supersedeas is necessary in order to prevent the judgment from being executed before the motion is heard, the supersedeas may be granted by the court itself, or by a judge, either thereof or of another court, under section 742, Code of 1930. The court below was not in session when this motion was filed, and the judge thereof was not accessible to counsel for the movant. That statute does not require notice to the opposing party, and in some instances time will not permit the giving of such a notice. It would be well, of course, for the judge to whom the application for the supersedeas is made, if time permits, to require notice to be given the opposing party before hearing the application. Such is the course pursued by the judges of this court. See rule 31 of this court,
I come now to whether the alleged insanity of the appellant at the time of his trial, not then made known to the court, presents a ground for vacating his judgment of conviction. Insanity at the time of a defendant's trial is not embraced in the issue of his guilt vel non of the crime charged. If that fact is made known to the trial court, it must, before trying the case, inquire *833
into and determine the defendant's then sanity vel non, with a jury if necessary, before proceeding with the trial. The two Hawie Cases (Hawie v. State,
The power of a court to vacate a judgment rendered by it at a former term thereof rests, not upon a statute, but on the common law. That the courts of this state have such power is firmly imbedded in its jurisprudence by many decisions of this court. The grounds for vacating such a judgment are such as this, the Supreme Court, may adopt, and which seem to it necessary for the administration of justice. This court heretofore has been very careful in this regard; and so far only a limited number of facts have been held sufficient for vacating such a judgment. I will not catalogue these facts, but insanity at the time of the trial, not then made known to the court, was held by this court to be a ground therefor in Hawie v. State,
The test of insanity at the time of a defendant's trial "is not precisely the same as on the main issue; it is whether the defendant can make a rational defense," 2 Bishop's Criminal Procedure (4 Ed.), section 667, Hawie v. State, supra, and Hawie v. State,
The first of the two Hawie Cases, supra, in which the only question presented to and decided by the court was the one here under consideration, was rightly decided on its particular facts, and when the opinion therein is confined thereto, as it should be (Pass v. McRea, Coffman Co.,
But aside from all this, it is manifest from this record that Mitchell was not insane at the time of the trial in which his judgment of conviction was rendered. He testified there in his own behalf, which testimony in full was introduced in evidence in the court below, on the trial of the issue presented by the petition to vacate that judgment. His examination at the trial covered a long period of time, fully tested his capacity to remember and relate facts, and disclosed that he had advised his *836 counsel of every fact that bore on his defense to the crime with which he was charged then known to him. That defense was, and Mitchell so testified, that he would occasionally suffer lapses of memory, covering short periods of time, and that the time of the homicide with which he was charged was one of these periods. That he could not remember what occurred at the time of the commission of the offense with which he was charged of course presented no ground for the court's declining to proceed with his trial.
I am of the opinion that the judgment of the court below should be affirmed.