This is аn original application filed in this Court for permission to file a "Writ of Error Coram Nobis in the Union Circuit Court for inquiry as to Mitchell’s sanity at the time he was tried and convicted in that Court.
Ths is the fourth time this man Lonnie Mitchell has been in litigation in this Court. The first case was Mitchell v. State (Case No. 4950, decided September 21, 1959),
The present (fourth) case was filed in this Court on July 3, 1961, and is an “Application for Permission to File Petition for Writ of Error Coram Nobis.” This applicаtion is filed in this Court because we affirmed the first case, thereby acquiring jurisdiction; and the Circuit Court cannot hear a Writ of Error Coram Nobis in a case apрealed to this Court until we grant such permission. Hudspeth v. State,
“2. Petitioner avers and verily believes that he was insane at the time of the commission of the offense for which he is now convicted.
“3. Petitioner avers and verily believes that not only was he insane at the time of the crime for which he was convicted аnd is now committed, bnt that he was insane at the time of the trial wherein he was convicted and sentenced to death, and further that he is presently insane.
“4. Petitioner did not have a mental examination prior to his trial, and has been repeatedly refused permission to have a private psychiatrist examinе him, and Petitioner honestly feels that a mental examination by a private psychiatrist is absolutely necessary so as to afford appellant an оpportunity to be heard.
‘ ‘ 5. Petitioner’s insanity was not known at the time of the trial,1 and such fact was not then suggested,2 or raised in issue by either of the parties hereto; Petitioner avers that he did not have the mental capacity to so apprise the trial court of his mental condition.
‘ ‘ 6. That no other remedy is available to Petitioner to review and inquire into the question of his insanity at the time that the crime was committed, and also as to his insanity at the time of the trial, except the remedy as provided by a writ of error coram nobis.”
In Jenkins v. State,
‘ ‘ This court has repeatedly held that after the expiration оf the term at which a judgment of conviction was rendered, the court may, upon proper showing of insanity of the accused at the time of the trial, which wаs not suggested at the trial issue the writ of error coram nobis for the purpose of inquiring into that question, :"3
In 24 C. J. S. p, 149, “Criminal Law” § 1606, cases are cited to sustain this textual statement:
“Insanity. Where, after the expiration of a term it appears that the accused was insane at the time of the trial, which was not then known, then writ may be used to set aside and vacate the judgment.”
We have carefully checked the record in the first case {i. e., the original trial and conviction of Mitсhell); and in that trial there was no mention, suggestion, or intimation of Mitchell’s insanity at the time of the offense or at the time of the trial. The present appliсation is unverified and is not supported by any affidavits; and we were on the verge of denying it as not filed in good faith, until Mitchell’s attorneys filed in this Court on November 13,1961, their motiqn to require the Superintendent of the Arkansas State Penitentiary to permit Mitchell to be examined by a private psychiatrist. The motion alleges in part:
“2. That the petitioner, through his attorneys, has on several occasions requested permission of the Superintendent of the Arkansas State Penitentiary, the aforesaid Lee Henslee, to have the Petitioner examined by a private psychiatrist but in each instance these requests have been denied3 4 by the said Lee Henslee: the requests have extended over a period of more than a year and a half.
‘ ‘ 3. That the petitioner, through his attorneys, has retained the services of a private psychiatrist to perform the examination, which services have been on a retainer all during the period that the requests have been made, but that no examination has been given because permission has been refused by the Superintendent of the Arkansas Stаte Penitentiary, the said Lee Henslee; that the private psychiatrist is ready, willing and able to perform the examination at any time that permission is granted. ’ ’
When the said motion was filed in this Court on November 13,1961, proper arrangements were made and Mitchell was examined by a private psychiatrist chosen by sаid attorneys; and they filed in this Court on February 5, 1962, the eight-page report of Dr. Elizabeth Fletcher as the private psychiatrist selected by Mitchell’s attorneys tо examine him. It is a single-spaced document covering two examinations of Mitchell made by said psychiatrist: one interview was on January 20, 1962, and the other wаs on January 29, 1962; and the report reflects collaboration with another psychiatrist. Dr. Fletcher’s report concludes that Mitchell is without psychosis: “It is felt that he is competent and knows right from wrong. ’ ’ There is nothing in the report that tends in any way to show that Mitchell was insane, either at the time of the commission of the оffense, or at the time of his original trial, or at any other time. A careful perusal of the report convinces us that Mitchell was sane at all times.
The report of Dr. Elizabeth Fletcher is the only material of any kind tendered by the petitioner and his attorneys and, as aforesaid, this report tends to negative аll of the allegations in the original motion filed herein on July 3, 1961. In Jenkins v. State,
Notes
The petition also contains allegations that he is presently insane; but those allegations should be considered in a proceeding under § 43-2622 and not by Writ of Error Coram Nobis.
If Mitchell is presently insane, as the application allеges, then the proceedings should probably be by a next friend for him, as was done in Hydrick v. State,
For subsequent cases see Hodges v. State,
This statement in the said motion is misleading. The petitioner may not have been examined by a private psychiatrist, but he was examined by the Staff of the State Hospital pursuant to law and there is in the files in this case a four-page report, dated January 5, 1960, which discloses that Mitсhell was examined by the Staff of the State Hospital and found “without psychosis.” This report recites that the examination was made because one of Mitchell’s present attorneys requested the Superintendent of the Penitentiary to have Mitchell examined.