*1 450 DATE EXECUTION TO NEW
ON MOTION SET 84 2d 429 So. 9, 1956 January J. Gillespie, crime of mur- appellant convicted
The County, Missis- in the Sunflower der Circuit Court Court, to this the judgment and upon appeal sippi, and 6, 1954, on December court affirmed the trial 1955. January 20, for of execution was fixed date an prosecuted Appellant 2d 234. v. 76 State, Sorber So. which States, of the United Court appeal Supreme "appeal. the said May 1955, dismissed Court, 31, on Supreme in the Thereafter, filed appellant Oc- rehearing Court of the United States for rehear- the petition this Court denied 24, 1955, tober ing. Court set this formerly for execution
The date its filed motion having passed, having State for execution of motion set new date supplemental motions the said upon appellant, the death sentence February 9, 1956 Thursday, hereby are sustained of the death sen- for the of the execution is fixed date provided by manner law. tence 9, fix- February 1956 Thursday, Motion sustained and the death sentence. ed the date of execution of as All concur. justices v.
Wetzel State 76 2d 188 So. No. 39355 December *2 452 194 2d So.
December *4 January 17, 1955 76 So. 2d Mc- Townsend, Howard A.
Neill, Indianola; Clark & Donnell, appellant. Biloxi, *6 Patterson, T. General; Joe Coleman, Attorney
J. P. Atty. Gen., Jackson, Asst. appellee. *7 appellant.
Brief for for appellee.
Brief
Brief for appellant.
Brief appellee.
465 J. Ethridge,
Appellant William Alvin was convicted Wetzel County the Circnit Court of Sunflower of the murder Edgar (Sonny) G. and was sentenced McGraw, appeal argues assignments death. On this he four (1) error: The State’s evidence was insufficient to es- appellant’s guilt beyond tablish a doubt, reasonable be- ing part by physical inconsistent and contradicted in (2) (3) facts; the denial of a continuance; the refusal requested by appellant; (4) of two instructions and by attorney the cross-examination the district of six appellant concerning prior witnesses convictions. killing Tuesday April The occurred on afternoon, between 1 14, 1953, P.M. The scene was corn- grounds Mississippi field tentiary State Peni- Edgar at Parchman. The man murdered (Sonny) McKnight G. McGraw. L. McGraw, James County Jack Watson were convicted Pike of the same larceny. grand offense, McGraw turned “State’s evi- against McKnight McKnight plead- dence” and Watson. guilty. years, ed McGraw received sentence two McKnight considerably longer and Watson sentences. April Monday, McKnight On McGraw and were as- signed Camp penitentiary, at the and Watson to Camp 6. McGraw was slain the next afternoon. by eye-wit-
The State’s case was established three killing, nesses another witness who saw Wetzel immediately stabbing, with the knife after testimony McKnight, concerning of another witness, *14 certain threats toward deceased, Wetzel other and evidence hereinafter referred to. serving
Andrew a Warren, term theft, for cattle was working boy driving as a’water and a mule-drawn water large drinking on which cart, there were barrels working The water. cornfield which the men were railroad, was west of a and to the west of the corn- upon field was 16-foot wide turnrow, uncultivated, turned while were vehicles farming equipment which and work- seventy-two convicts field. There were working the men a row. to thirty-six rows, the two ing field, plant- the men were field, Corn was in the and growing corn, apparently the which or beans between ing peas for the a hole chop front man would not The high. was in the the seed drop and the second man would seed, of men was called and it. The north row hole cover the faster workers apparently lead which row, upon the count-row, row was called placed. were The south cart water swing-row. the center row "Warren’s and He ap- the turn-row. on the north side of was situated water cart when or on the parently sitting standing was men under Camp occurred. The from were the cutting Dye. a civilian named guard Captain the control of shooters, trusty him called sta- guards Under were four area. four of the On working tioned around the corners cart, to the north of the water corner, the northwest E. and the southwest corner Brooks, on trusty, J. The shooter, another or Brown. trusty-guard Jack side, men field had started on its west working the to east after had almost com- gone end, turning of them row, second west. Most pleted working on it. near and a number were turnrow, were part who saw of the event any All of the witnesses were convicts. buckets had two water placed five-gallon
Warren water row. He was south middle slightly fifty cart about feet north of the buckets when that he step occurred. He testified saw McGraw killing a hoe get out of line to knocked out water, Jones hand, grabbed McGraw, pulled of McGraw’s Sorber hair, his head back his hand over his put mouth; him, ap- that Harrison stood in front of ran up McGraw, put Wetzel behind his hand pellant on his left with a knife cut McGraw’s shoulder, and McGraw Captain Dye. throat. screamed Warren tried run back to the water cart north. War- *15 give ren said lie saw Wetzel Sorber, knife to but he does not know what Sorber did with it. He that said cutting twenty-eight occurred about feet south of seventy- the water which buckets, would make Warren eight slaying feet north of where the occurred. McGraw prison physician died about four minutes. The testi- fied that McGraw’s death was caused which cut, long deep, was about three inches and two inches right extending side of neck, from the Adam’s apple straight, area. McGraw also had a knife smooth fingers wound on the inside of three of his left hand. McKnight serving burglary, L. James was term for along McKnight plead- with McGraw and Watson. had guilty, previously ed but as stated McGraw had testi- Camp McKnight fied for the State. was in 6. Watson days County said that for several he in the Hinds Jail Jackson with Wetzel and Watson. He heard talking turning them about McGraw State’s evidence. pigeon” told him that if Wetzel he McGraw were a “stool penitentiary. have a would hard time at the He heard talking Wetzel and Sorber, Watson about Jones they jail and he concluded that had been in in Jack- got McKnight assigned son before he there. When Camp Monday day 5 on afternoon, before the killing, knew him Wetzel, him, who asked about his and Watson’s case and whether turned McGraw State’s McKnight evidence. said he told Wetzel Wat- got thirty years, got years. son and McGraw two Wetzel McKnight then stated to that “he told Jack Watson Sonny he would take care of if he McGraw came camp McKnight where he was.” said that when they got Captain Dye morning to the field the next they said he understood that had the man who “squealed”, calling- had thus to the attention of the presence. convicts McGraw’s The men to their returned camp about 11 A.M. and went back to work in the field McKnight at 1 P.M. said that he did not see the stab- bing, say “probably but heard Wetzel that McGraw *16 a had row, Ms
cut He had fiMshed Ms own throat”. the stab- had sat down south water, drink of and not that he did when it occurred. He admitted bing threatened in he Magnolia at the trial like McGraw and at he was angry kill Mm a knife. But he said to with in killing. that time he had no part and a serving Namon Bangs, Another eye-witness Wetzel, that saw Jones term for murder. He said he stab McG-raw McG-raw, and hold and Wetzel Sorber who Sorber, a handed the knife to with kmfe. Wetzel he that it in a blue handkerchief. said Bangs buried Another eye- when it occurred. away was about ten feet a a Brown, trusty-guard, serving witness was Jack look- of the cutting, sentence for murder. He was south that testified north toward the water buckets. He ing with go and Harrison Wetzel, Sorber, he saw Jones all men water and then five bucket, McG-raw to the hoe Brown. south, slapped walked toward Jones held hand, out of Sorber McG-raw McG-raw’s around in front head, hair of his with his other hand him on the left shoulder “caught and him, Wetzel back, knee in his and cut his throat.” put and not the actual but cutting, Mike did see Potapov, Jr. a after it immediately happened, with knife saw Wetzel the knife to who Sorber, wrapped saw hand and Wetzel it in a blue leaned over like he was handkerchief, tying and covered the knife and handkerchief shoe, up. Ms near Mc- Jones, Wetzel, He saw Sorber and Harrison that The witness said he was to the water going G-raw. that occurred, bucket when the he was with- cutting it. that Potapov to ten feet of further testified eight before the period occurred, dinner during cutting he was or in the next camp building cage aisle in a Wetzel; he saw Wetzel locker under go out a jackknife; his bed and take red-handled the knife taken Wetzel was similar found under the earth on the of the turnrow in edge buried polka-dotted shortly a blue and white handkerchief after killing. Sgt. charge Camp D. C. Tomlinson inwas 5. He up cutting. pile came after the He noticed of dirt on the side of a small drain next rows, polka found it under a blue handkerchief with white dots, wrapped jackknife, Potapov around red which testi- fied was similar to that he had observed take Wetzel *17 during from his foot-locker the noon hour. Tomlinson kept incoming packages stated that a record is of all prisoners; to the that about two weeks before, Sorber’s Dayton, package containing in sister sent him Ohio, polka four blue with handkerchiefs white dots. The wrapped dug handkerchief around the knife and out of ground by killing the drain after the was similar to the handkerchiefs received Sorber. On the morn- ing after McG-raw’sdeath, Tomlinson said that he found polka-dotted the other three handkerchiefs in Sorber’s they wrap- foot-locker, and that were similar to the one ped killing. around the knife found after the There was apparently no blood on the knife and not on the hand- wrapped kerchief around it. The witness stated that to knowledge there were no other similar handkerchiefs camp. at the
Wetzel offered fifteen witnesses his defense. Dal- working ton testified that Sorber was near him when McGrraw was but cut, he did not know where Wetzel killing place. was when the took He did not think much “squealer”, of a and if he knew who killed McGrraw, jury. he would not tell Williams said that he and working forty Sorber were about feet in cornfield, just and Sorber was behind him. He did not know where cutting. Wetzel or were, Jones and did not see the He stated that after the line came toward the turnrow, Jones crossed the field and talked to Sorber. Jones told ready.” Stanley Sorber “The kid is testified that Sor- working twenty-five ber was the field fifteen to feet talking behind and him, he was to Sorber when Me- G-raw cried out. He not where Wetzel, did know Jones and Harrison were. no a man turned He had use for who if cut he evidence, McG-raw, State’s and he knew who would not not cut. tell, since he did want his throat
Cecil Bear did not see hut he that said cutting, at Wetzel that time to him at standing next water bucket, and was not down where north, the cutting took that was out in the field place; Sorber at the time. He denied that after working cutting he water on poured Wetzel’s hands. Thomas Butters and Joe Castro did not see the but that cutting, said was not where it place, Wetzel took but was near them at the water bucket. Castro had previously signed written statement Wetzel, he did not know where were at Jones Sorber the time of the Sev- killing. eral other witnesses for defendant testified there a good many were men on the turnrow at the time Wetzel, Jones, addition to cutting, Sorber Harrison; after McG-raw was cut he ran north toward the water cart and into several men. Tom- Sgt. *18 that linson said about fourteen men had some blood on after them the cutting.
Appellant years from twenty-eight age, Seneca a Falls, York, New term for armed serving robbery. He that for in days admitted several he was the Hinds County Jackson, Jail and that and McKnight Watson were there also. He does not recall conversation any with but that McKnight, admitted he talked to Watson times. that However, several he said Watson did most of the and that not say he did much. He denied talking that he told or that had Watson McG-raw McKnight a at Parchman, would have hard time and that he had stated to that he would take care of Watson McG-raw there. He said that he have might discussed McG-raw Watson, with because the was on the story radio. Wet- went to Parchman on March 1953. He zel had never farm at before, done work was tired and did night, not associate with the other or men, including Jones McKnight himself, introduced stated that Sorber. He any but that he threat about McGraw. denied had made a knife a that took He denied that he had knife and he he came out out of his He that when foot-locker. said A number he water bucket. on the turnrow went dipper got a was of men and he and drink- there, were ing through his them with water ran when McGraw people. spattering about fourteen cut, throat blood on got and back of front, side, He on the left some blood pants. kill arid McGraw, that not He stated he did participate any killing him. He did not not did cutting not know who did it. see the and does George that he saw In Harmon said Cecil rebuttal, pour was hands, Bear water on Wetzel’s and Wetzel rubbing together. if heard He Wetzel state them got just he and he what deserved rat, “was McGraw they anybody talk it didn’t if seen was best it, just they they get He he did.” if would what did, previously that he had admitted cross-examination appellant’s attorneys that he saw a statement to made struggling La Jones, Sorber, with Bear McGraw Fontaine. summary foregoing is a
First. The substantial carefully testimony. it. It have considered of the We ample support jury. Wetzel’s verdict general an him, denial consisted of defense alibi twenty-eight placed buckets, him the water about near which killing. At least three
feet north of appellant to confirm that tended of his witnesses three offered hand, On other State version. witnesses they unequivocally were who testified appellant killing, eye-witnesses and that *19 They throat. the knife who cut McGraw’s man with Potapov Bangs In addition, and Brown. Warren, were immediately he saw with the knife Wetzel testified it to hand cut, throat was and Wetzel McGraw’s after. wrapped and buried it in a handkerchief Sorber, who it. Cf. v. State, 216 Miss. 2d Massengill 278, 285, 62 So. 330 (1953). McKnigiit’s as well as other evi- testimony, dence, offered an ample of motive, desire Wetzel and his accomplices an punish against informer Wat- son. A red-handled in a jackknife wrapped blue and up white polka-dotted handkerchief was found near scene of the killing. said that noon Potapov during the hour he saw Wetzel take of out his locker a similar knife it put pocket. Other State witnesses saw bury Sorber a knife, a wrapped in blue handkerchief with polka white dots. This directly handkerchief was related to Sorber testimony of Tomlinson. Sgt. After saw cutting pour Harmon Bear water Cecil on Wetzel’s hands and Wetzel them rubbing together. Jones and Sorber had at least one conversation between them before they got which turnrow, during Jones told Sorber “The kid is In ready.” of light all of this testimony, which the mani- could, and jury festly did, as accept we think that true, the great weight of the evidence in this case points toward appellant’s guilt this murder. all Practically witnesses for both sides were convicts. at common law Although person a convicted most felonies was disqualified a witness, as Code Sec. 1692 removes that disqualifi- cation. The conviction be may used to impeach his credi- bility, is question for the jury. Code Sec. 1693; 58 Am. Jur., Witnesses, Secs. 137—143.
In all material particulars the State’s evidence con- sistent and reasonable, and supported facts. by physical It appears there were number of other convicts on the turnrow when the but killing occurred, Wetzel and his three accomplices were up bunched together around McG-raw about feet south of the twenty-eight water buckets. The delay several days by Warren Brown what they reporting saw was not un- usual under the circumstances. Both of these men were convicts, and may very well have feared that they might *20 treatment receive same which did. It McGraw true that there no on hlood the knife discovered very but either or officers, could Wetzel Sorber wiped burying Bangs’ well have testimony it off before it. Whether appellant’s
or his earlier statement at- torney question jury. should be a believed was for the Payne, The fact mere that John Chairman of the State participated investigation Parole Board, in the crime does not tend to that the were of- show witnesses any hope testifying fered of reward for for the State. Payne clemency to testified that he no made offers of any prisoners. experienced police an He was of- experience investiga- ficer, and the use that in this tion was not Nor unreasonable. was it unreasonable complete that McGraw one of the first men to approach row and the water buckets, since newer prisoners might be well inclined to work faster than might get the older ones, or McGraw have desired to protection. ahead his own jury justified finding appel-
The was well that killing lant’s motive or reason for the deceased was punish informing “squealing” him for or on his co- McKnight. Appellant indictees, Watson is a hard- many long ened criminal with over record crime years. testimony, particularly by McKnight, The appellant they certain witnesses for who admitted that they identity would not disclose the murderer if supports him, knew tention D. Gibbs, J. the State’s con- appellant in- killed McGraw because he formed other criminals. The infantile nature of this negative in a attitude criminal’s mind does not its exis- tence. beginning appel At the
Second. of the trial ground lant made motion for a continuance, on the newspaper publicity about the crime had re County pre notice in ceived such wide judice Sunflower as to prospective jurors against the minds of defend- *21 impartial a fair and that he could not receive ant, so was made. Or motion for a of venue change trial. No a not suf excitement or is prejudice dinarily, popular in in criminal cases for a continuance ficient ground circumstances. extraordinary the of unusual or absence a con venue, of but remedy change The correct is circumstances be where unusual proper tinuance would S., 12 17 C. J. Jur., Continuances, 18; exist. Am. Sec. ap support position, 78. To his Continuances, 75, Secs. of concurring opinion pellant upon special relies 50, in 341 71 S. Florida, two v. U. S. judges Shepherd S., v. U. Ct. 95 L. Ed. also Leviton 549, 740 See (1950). 946, 343 72 denied, 193 F. 2d certiorari U. S. 848, 866, F. 2d 209 Harper, Ct. 860 Palakiko v. Sup. (1952); in facts 75, 96-98 9th (CCA However, 1953). the in way analogous case are no Shepherd in sup testimony stant one. Here offered no appellant two of motion. introduced evidence port only his He newspapers, from news stories Indianola and Greenville the trial before September 15, days dated which was six news Those are began. essentially objective articles trial. would They of the paper reporting approaching The not certainly any prejudice against appellant. cause trial and the April 14, 1953, crime was committed on all the ma was on 1953. of September 21, Apparently of rights for both sides testified. The terial witnesses a fair im were He had appellant fully protected. for continuance did Moreover, trial. the motion partial with statutory require not and decisional comply ap no Assuredly injustice ments for such motion. for con from the denial of his motion pellant resulted 1520. There no what 1942, proof Code Sec. tinuance. or any hostility prejudice against in this record of ever State, trial. v. before or Cf. Garner appellant during 413 Miss. 30 2d (1947). So. refusal complains by Appellant Third. trial court of two similar instructions substantially in- requested “The Court him. of them stated: One you jury that if believe for the defendant structs any testimony witness who in this case from promise, by coercion, fear, or has was actuated testified, immunity, pardon, hope hope then or reward, or weighed testimony be the you of such witness should great that such testi- care and caution, with you mony entirely disregarded, if believe should be it to be untrue.” testimony
Appellant no direct concedes that there was hope promise, af reward or coercion, fear, as to *22 argues testimony any fecting that but he witness, the of that and record, is manifest from the their existence Appel to such instructions. therefore he was entitled by granted trial court two other instruc lant was the point jury. fully to the this One tions which submitted they jurors the reason that should consider told the they testimony, that unreasonableness of the ableness or story by any required told wit to believe the were not the, they right mo had the to consider and ness, background evidence, shown the and tives, demeanor, they judgment what had own from to form their granted appellant seen. Another instruction heard and they judge jury the the sole of the were advised credibility they wholly dis witnesses, could they testimony any regard witness which did fully granted instructions true. These believe to be not point jury. an instruc Moreover, submitted this upon The re the evidence. must be based tion quested erroneous because instructions were and refused tending jury to estab before the there was no evidence any part hope wit or of reward on lish coercion weight they were on and also because ness, 211 50 2d State, 100, Parnell v. Miss. So. evidence. (Miss. 1951). Jennings, (1951); 352 v. 50 2d So. State argues prejudicial Appellant Fourth. also attorney’s cross- committed the district error was examination of five witnesses defendant, the defendant, former concerning convictions of crimes. Code of 1942, Sec. permits the examination of a witness concerning conviction of a crime. This ex amination must be limited essentially to the identity of the crime and the fact of the conviction. All five of the witnesses for defendant, and the himself, defendant had been convicted oil a number of The case occasions. is unusual for that reason. The district cross- attorney’s examination, in our opinion, stayed within substantially the limits established by the decisions Sec. interpreting 1693, and awas reasonable cross-examination under peculiar circumstances here. appel Moreover, lant made no objection to any this ex interrogation, cept as to. one question asked the and that defendant, objection was promptly sustained the trial court. Appellant made no motion for a mistrial. if even So there were error in the cross-examination, appellant failed to preserve that point on appeal.
Appellant had a fair and impartial trial. He has been ably represented by counsel both in the trial court and in this Court. On this record his guilt of this murder is clearly shown. The punishment imposed jury *23 is the inevitable result of the mandate of the sixth commandment, as codified in our common law and stat- utes. Hence the judgment of conviction and sentence of the trial court is affirmed.
Affirmed, and Thursday, January 1955, is here- by fixed as the date for the execution of the death sen- tence in the manner provided by law.
All nine of the concur. judges J.,C. Specially Concurring. McG-ehee, I am in full accord with the view of all the other to judges the effect in testimony this case was ample to justify the verdict of guilty as by rendered and that jury, the affirmance of the case is justi- testimony fully by contained warranted fied and appel- us; but fairness the record before in in say as to I am doubtful I must Wetzel, lant, of the con- third member or not he was the whether Edgar knife-slaying spiracy of in the which resulted facts and considerations in view of other G. McGraw disclosed the record. OOEAM OF EEEOE PETITION FOE WEIT
ON NOBIS J.
Ethridge, Appellant in convicted Alvin Wetzel, William County murder for the of Circuit Court Sunflower Edgar (Sonny) and was sentenced McGrraw, G. appealed, was submitted He then and the case death. and oral on briefs 8, 1954, to this Court on November arguments by both sides. appeal, num- docket which has the same
While this petition, under consideration ber as the instant presented appellant in vacation Court, Wetzel County petition Judge for the Circuit Sunflower charged that he had nobis, writ of error coram which newly if known evidence which found certain discovered judg- prevented have rendition season would given had that certain witnesses for State ment; testimony perjured in his con- which resulted false and attorneys it; knew of viction and the State’s Penitentiary, Mississippi the officials at the State appellant another crime was incarcerated for which prosecut- killing and the occurred, when the McG-raw suppressed attorneys ing and with- for the had State in a would have resulted material evidence which held judgment. the Circuit 17, 1954, November On different petition Judge on the same writ, for the denied day petitioner in- the same in this Court filed Wetzel a writ error as a to this Court struments *24 ap- petitioner’s at a time when coram nobis. This was peal the Court. was under consideration on the merits 478
A decision on the appeal is handed being day down this also. The instant petition was argned orally to the Court in Banc on November 29th by attorneys for the petition- er and the In State. the meantime and the petitioner, State, have filed briefs on issues, so we consider them both on oral arguments and briefs. have care- We fully considered the petition with the two attached af- fidavits, and have concluded that it should be denied, for reasons hereinafter stated. opinion
The in the from appeal which conviction, is being handed down day, this substantially summa- rizes the evidence in the circuit court. Reference made to that for an opinion analysis statement of the evidence. April On 14, 1953, petitioner was serv- a term in ing the Mississippi State at Penitentiary Parchman for armed He robbery. and about other 71 men, constituting inmates at 5 of Camp peni- tentiary, were in a cornfield planting peas or beans between the young corn. To the west of the cornfield was a turn-row about 16 feet wide, and in about its approxi- mate center a water boy, Andrew Warren, placed had two large water buckets with dippers, from which the men would drink water as they finished a particular row. The murdered man, Edgar G. (Sonny) McGraw, been had convicted with along McKnight and Watson of the same offense, grand larceny. McGraw had turned “state’s evidence” against McKnight and Watson. On Monday afternoon, April 13, 1953, McGraw was assigned Camp with along McKnight.
The substance of the State’s case is that Wetzel, criminal with several prior convictions, and’ Sorber, Jones and Harrison decided to kill McGraw because they knew that he was an informer or “squealer”. After dinner, between 1 P.M. on Tuesday afternoon, April 14, 1953, McGraw finished row, drank some water at the water bucket and Wetzel with the along three accomplices, him followed for about 28 feet south *25 point Mc- held Sorber buckets, at which of the water knife. a throat with cnt McGraw’s Graw and Wetzel -un- it who buried Sorber, the knife to He then handed wrapped ground edge turn-row, the on the of der the polka-dotted case The in a handkerchief. State’s blue by eyewitnesses, who convicts, all three established happen: they foregoing Andrew the that saw testified trusty- Bangs Brown, a convict and Warren, Namon Jack guard. Potapov, not see convict, did Jr., Mike another a cutting, with but he he saw Wetzel the actual said happened, immediately him hand knife after it and saw ground. Potapov also it in it to buried the Sorber, who cutting period during the the before said that dinner bed under bis he take out of locker saw Wetzel jackknife, that found similar to red-bandied which was edge guards the earth on buried under the the witness in a Another State the turn-row handkerchief. identically de- the same that a handkerchief of testified scription, along the others, three was received with killing. mail about two weeks before Sorber McKnight, testi- McGraw’s, L. a co-indictee James fied that him he take care had told would
Wetzel camp be- was, where he if he came to McGraw “squealer”. George Harmon testified cause he was a pouring water on he saw another convict Wetzel’s rubbing together after cut- them hands, and Wetzel strong ting. supported by case Hence the State’s jury probative if value evidence of considerable manifestly did. it witnesses, believed the which State’s Appellant’s alibi, and undertook to establish evidence he killed at the McGraw was to the effect that time drinking feet about 28 water, was at the water buckets Appellant killing at occurred. north of where Po- He denied so testified. least three of his witnesses having tapov’s testimony a knife, him and denied about against any having McGraw. made threats nobis avers for writ of error coram Wetzel’s McGraw; and the murder of that he is innocent of testimony witnesses, of four State’s Warren, Brown, McKnight was false Bangs, *26 perjured, contradictory and not warrant so as to verdict that based it. The further avers upon ft. Bye, Bye, only W. referred to as was the Captain non-convict in the oc- vicinity of the when it cutting curred. The record on the merits that was Bye reflects some distance see away from the and did not cutting it, but that he arrived there a few within minutes after having been boy. called the water did Warren, Bye not in testify the trial below. The petition charges instant that he made an after ar- investigation immediately he at scene, rived the that and he the furnished results of that investigation to officials the penitentiary and prosecuting attorneys State; that the the State suppressed his testimony and did not use him as a witness because its attorneys knew that his evidence would have been favorable to and that the petitioner; State’s witnesses conspired to use perjured testimony against petitioner in trial on the merits. The peti- tjie tion avers that after case the on the argued merits to this Court on November statement 8, 1954, Bye’s of what he saw and observed was made known to peti- tioner and his attorney through justice of the peace, following which petitioner and promptly with due dili- gence prepared the two affidavits pe- attached the tition and filed it. The petition that mem- charges certain of the prosecution’s bers staff of knew that attorneys Bye’s evidence would in be contradiction to the testi- mony of the State’s witnesses, knew that the testi- of the mony latter was false, yet but concealed the fact that Bye testify would to establish an alibi for appel- lant. It is that charged appellant reason and his attorney did not interrogate Bye before the trial in the circuit court was because they believed that he was hostile toward petitioner. the petition Hence prayed that upon hearing judgment of conviction be should and petitioner reversed awarded a new trial. petition, only support in The evidence of this with af- conclusions and two above, averments stated Dye, by petitioner one fidavits, W. R. and another Dye’s employed Wetzel. by affidavit states he was Penitentiary Camp at State and he directed they the movement of the convicts out to the field where working, were an work; overseer of their only employee he was the civilian and non-convict vicinity Dye when not ac- McGraw was killed. “did tually witness the fatal altercation which resulted” McGraw’s death. He was then to the field he called place killing at arrived and a half one one cutting minutes after the and about two or three minutes Dye’s says before death. he McGraw’s affidavit *27 investigation an made of the at that time event, and McKnight Bangs him Warren, Brown, to and denied they they that saw who cut McGraw’s and that throat; many him advised place that there were so men around impossible at the time that it was for them to see it. His affidavit further states that it would have physical impossibility partic- been for Wetzel to have ipated cutting, Dye yards in the because was about 150 away apparently from Wetzel, to the of and him, east completely that Wetzel was in out the cornfield about yards point to30 from the of the altercation on the Dye racing that turn-row; while was to the scene where Dye passed was, McGraw Wetzel, who was at the time working in the field and who could not have close been enough cutting participated to the to have it in and Dye then have returned to where him in saw the field. Dye’s says affidavit also that he the infor- furnished investigation mation which he had accumulated in his Sergeant to Tomlinson E. and A. Reed, Assistant Su- perintendent Penitentiary, they him told probably that he would be called aas witness. State’s He at was available all times, but “was never called or by questioned” Penitentiary the officials or prosecuting attorneys, days and that within a few after his discharged from 14th he was April
the killing was after he states reason. further that Dye no job at- occasions he on several was contacted discharged whose names the prosecution, connected with torneys if he would recognize not remember but whom he could them, perhaps that he “talked” to he saw them; but investigation, that told them of his inference, he testimony that witness; as a he was never used contrary completely for the State is eye-witnesses to such him; testify and that he would they to what told facts. attached It petition. is also affidavit
Wetzel’s
personal opportunity
that
never had the
states
he
3 days
with witnesses
since about
fol-
communicating
he
in
at
jail
since
Olarks-
death,
McGraw’s
lowing
The affidavit
states that
from that
time.
Wetzel
dale
and several of the
that some of
convicts
believes
have testified to the
officials could
truth
penitentiary
that
behalf,
but that he learned
officials
witnesses had
hostile attitude
adopted
several of the
they
in fact
were intimidated
into
him;
toward
that he did not and could not have par-
not testifying;
because he
not near
stabbing
McGraw’s
ticipated
diligence,
it
it occurred. On
question
when
he had reason
believe
Dye
Wetzel states
*28
he and
would con-
hostile
him and that
others
to
concerning
all
that he discussed
him;
possibilities
vict
the course
attorneys during
with his
witnesses
his at-
both he and
and that
trial,
of his
preparation
that he
witnesses;
in contacting
torneys
diligent
were
the offi-
some of
that, although
his attorneys
advised
and
not,
would
testify
help him, they
could
to
cials
any
to
thing
it
useless
discuss
was a vain and
had
that he
rea-
employee;
or
Dye
any
facts with
other
con-
was never
Dye
reason
think,
son to so
and
after
until
several
only
days
and it was
tacted,
8,
on November
to this Court
been submitted
case had
483
year
1954, which was more than
his conviction,
after
Dye
testify.
that he learned of what
would
Although
by
judge to
the refusal
circuit
appealable
Carraway
issue the writ is not an
v.
action,
(1932),
State, 163 Miss.
141
So. 342
639,
petition
regular
Court will consider this
in Banc in a
being
term on its
as
merits,
addressed
the inherent
powers
revisory capac
constitutional
of the Court in its
ity
pending
with reference to a case
also
it,
before
and
being
as
Ex
within the orbit of Code
1657. Cf.
Section
(Miss. 1953);
Parte
63
52
v.
Willette,
So. 2d
Dolan
(1943);
State,
154,
195 Miss.
13
2d 925
So.
Musselwhite
(1952);
v.
215
State,
363,
Miss.
Petitioner contends that on the basis of his Dye and the affidavits he is himself, ground newly entitled to a new trial on the discovered Mississippi evidence. But it is well established both in elsewhere the writ of coram can error nobis newly going not be invoked for discovered evidence merits of issues tried in court 24 below. pages C. S., J. Criminal 49 Law, 1606, Sec. 149-150; Judgments, pages C. S., J. 312, Sec. 31 Am. 567-568,; Judgments, (1924); Jur., Fugate Anno. 33 L. R. 84 804; Sec. A. (1904);
v.
85
State,
94,
Miss.
Jur., Sec. writ Judgments, newly coram nobis allowed on the dis- ground were after the might defendant evidence, judgment, covered or would have been discover fabricate evidence which him necessary it for trial, material on the that would be fact, pro- to obtain the errors in and only writ, assign and that such ceed to the matter over try again, whole of the practice validity judgments would render the the too with sound policy, courts uncertain to comport or safety, public convenience.” in is as the made
Moreover, charge insofar Brown, Warren, the the State’s witnesses Mc after shortly and told Bangs Dye had McKnight killing, the who they G-raw’s death that not see did did testi would and as that Dye insofar the petition charges about and fy working in the field Wetzel was out Dye testimony by 30 to yards cutting, from the such thorough would on issues simply be additional evidence the credibility of trial ly court, namely, the litigated the at State’s and the location Wetzel witnesses, alleged prior time of the about Dye’s testimony, cutting. four the above-stated contradictory made by statements to impeach for simply go would State, witnesses be an fact for their It would issue of credibility. veracity thoroughly and their and were jury, credibility import These were presented jury. submitted re can now be they ant not trial, issues or at motion coram date, examined this late either supra. nobis. v. State, Cummins it applicable, only Even where the writ lies an not appear error fact to reverse judgment trial unknown record, face ing in season, pre if would have known court, which, Carraway State, v. of the judgment. vented rendition four of testimony by Dye Certainly supra. contradictory state prior had made witnesses State’s prevented him not have rendition of would ments *30 485 judgment, only gone credibility but would have to the of those an out in the circuit court. witnesses, issue tried why
Another reason the writ can not is that issue Dye contrary completely the affidavit of W. E. to testimony the corroborating and defense of himself of his Wetzel Both wit-
witnesses. and his alibi Wetzel placed drinking nesses him at the water bucket water cutting when the occurred, and therefore 28 feet north of the incident. Petitioner an affidavit of now with the has filed Court Dye, E.
W. which states version en- tirely petitioner different from that of and his witnesses Dye’s places “completely in the trial. affidavit Wetzel approximately thirty out in the field and a distance fifty yards point to from the of said . . altercation .” Dye working Moreover, that states Wetzel was the point, Dye, yards field at that 150 he, was from apparently Dye him, to and that east, the while was “racing passed” to the scene where McG-raw was he working Dye’s Wetzel in the field. affidavit submitted completely with the is so inconsistent the with testimony appellant and that of his on witnesses subject trial that it can not be of credence. Peti- tioner still that he asserts and his witnesses testified truthfully, although jury did not believe them. That Dye’s being affidavit case, could not reason and common sense be correct. petitioner
Moreover, admitted the trial that he got pants, front, blood on the side, back of his past ran when McG-raw him at the water bucket after cutting. wholly That stands admission uncontradict- Dye’s possible ed. If it correct, affidavit is not petitioner got upon clothing; yet to have this blood attorney argu- he he admits that did. Petitioner’s in the suggested immediately cutting ments after the Wet- up zel ran towards the water and that bucket, this is got pants. Dye’s he how blood on his However, affi- got place cutting davit states he one 486 it and that occurred, a half minutes after
to one and Wetzel scene, passed he he racing while it. from yards away out of the field about conten- contradicts Dye’s wholly Hence affidavit More- the water buckets. tion that had raced to Wetzel *31 the near was standing that he over, Wetzel testified in brief, occurred. when the So cutting water buckets for pe- an alibi establish affidavit undertakes to Dye’s asserted, which has never titioner which he himself and Wetzel wholly testimony in contradiction of the physical the witnesses, which is contradicted his and cir- these Under pants. fact of the blood on Wetzel’s if that be conceivably thought it can not cumstances, have pre- it testimony, would had this alibi Dye given reasonable jury A judgment. rendition of the vented statement where Wet- accepted Dye’s not could have the occurred. cutting zel was when asserted the charges other The sup for the attorneys that State prosecuting are evidence, namely, evi material and withheld pressed told previously witnesses had that the State’s dence and evi McGraw, not who killed they that did see Dye in the at the working field Dye that saw dence Wetzel attorneys that the prosecuting and cutting; time of testimony. There were four perjured used knowingly State, representing of record attorneys prosecuting attorney the state attorneys, county the district and of Brookhaven. There is no attorney and an general, in the two af whatever indicated substantial evidence these serious support attached to the petition fidavits that everyone, including appel It is manifest charges. of this counsel, his trial knew before trial lant and near the scene when homi Dye case W. R. in his affidavit that he Dye cide was committed. states crime; of the did not witness the actual commission and that he the information which he had ob furnished of the investigation attorneys tained crime two prosecution, for the ber but remem- whose names he does not recognize them,
whom he would if he saw Superintendent also to A. E. Penitentiary, Reed, Assistant Sergeant Tomlinson. But what was he information which he furnished them? It was that killing; shortly did not after Me- witness and that McKnight Grraw’sdeath he was told Warren, Brown, Bangs they cutting did not see the and did not know who did it. same However, afterwards these manifestly changed witnesses their statements and ad- they of, vised the authorities at the trial. If the facts to which testified they prior contradictory had made state- simply go credibility ments, that would of these properly and was witnesses, matter for the defense. Dye Let us at- also assume advised the State’s torneys that he saw out in the field 30 to 50 Wetzel yards Prosecuting attorneys from the incident. must *32 and should exercise their sound discretion and common determining testimony they sense in what shall use according relevancy, a trial, to its reasonableness and Dye’s truthfulness. And as stated statement above, as to where he saw Wetzel was so inconsistent with the entire version of alibi witnesses, Wetzel and his testimony with the with the fact that of all of the witnesses, State’s had
Wetzel blood on his trousers af- cutting, attorneys fully ter the that were State’s attributing any weight warranted in not to this infor- Dye gave mation which we will assume to them. The attorneys necessarily State’s used their reason and com- determining mon sense in whether the witnesses for telling Dye, truth, the State were or whether who eyewitness, given not an had them a correct ver- many sion. And no im- doubt his inconsistencies and probabilities by were considered them. the affidavits So petition any support and the charges fail to furnish attorneys knowingly per-
that the State’s used jured testimony, they suppressed and that and with- held material evidence. and sufficient reason good
There is another error eoram nobis should this for writ of why petition principle applicable be denied. The hereinafter stated in the adminis a matter of sound judicial procedure as as tration of whether we consider justice, peti or nobis, simply one for a writ of error coram to the tion or call the additional evidence motion to Mus State, supra; attention of Buckler v. the Court. Am. Jur., v. It is stated State, supra. selwhite 806: “It is essential to the availabi Judgments, Section vobis that of the of coram nobis or coram lity remedy fact for relief was unknown upon the mistake of relied not trial, at the time of the and could applicant have been dis by the exercise of reasonable diligence him in presented covered time to have been duress, from court, prevented doing by unless he was so that it no fear, cause, neg or other sufficient so or that the matter was not ligence other fault of his trial.” appear made to at the former that he went over Petitioner’s affidavit admits with trial all pos before the the names of attorneys all concern possibilities sible witnesses and “discussed the reason ing testimony”; witnesses and their avail R. he was Dye contacted, although W. was never “that it able, attorneys was that advised his Wetzel facts was a vain any and useless discuss thing believed, with ... he Captain Dye ”, Dye because *33 duty him. think that it was the hostile toward We of whether petitioner Dye and his counsel to ascertain would, if he to him, would for testify favorably him, use as a witness. That of reasonable requirement pro Idnd of sound diligence, applicable any judicial sort, so to a of this is cedure, particularly petition not met with reference to R. by petitioner Dye. W.
For for a foregoing reasons, petition Wetzel’s hereby writ of error coram nobis is denied.
489 Petition for writ of error coram nobis denied. judges
All nine concur. ON APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF ERROR CORAM NOBIS J. Lee,
On December 1954 A. 6, this Court William affirmed Wetzel’s conviction of murder and death sentence. 76So. petition day 188. 2d On the same a for writ of error January coram nobis 76 was denied. 2d 194. 20, So. 1955 was fixed the date as for execution of the death January petition, sentence. On 12, 1955 Wetzel filed a designates “Application which he as for Leave to File Petition for Writ of Error Coram Nobis.” petition Chapter
This filed under is Miss. Laws 250, provides 1952. In brief, that statute that in all criminal judgment cases a where of conviction affirmed has been appeal, petition “no for the writ error coram nobis shall be allowed to be filed or entertained in the trial petition court unless and until the for the writ have shall presented” grant- been first to this Court, and “an order allowing filing petition ed of such in the trial court.” Chapter provides days for three written notice to be Attorney may served on the General, but that the same be Attorney waived. The General has waived that three- day notice.
Chapter procedure establishes before this Court precedent filing which is a condition for of error writ coram nobis the trial court in criminal conviction cases after sippi has been affirmed. The Missis designates Constitution Section 1890, this appellate Court an court. We have no facilities hear ing testimony. practice extensive oral The established applications this sort and motions have should supporting concerning them attached to affidavits charged pleading. application facts The *34 circuit court in the writ
for to file the petition leave for exception minor With one attached. has no affidavits which questions the referred it raises same to, hereinafter init the and decided Court, were this presented in with nobis dealt coram first for writ of error of the judicata there is res So. 2d 194. The decision application, the present raised in and matters averments to consider trial court which to authorize the asks us 194. in 76 2d decided So. again already the same issues circuit the court, had the trial If such a were in hearing law that the have to consider necessarily court would 6, of December decision case established the instant judicata application it is res of the 1954, and that and for the writ. proposed petition in application additional fact this only alleged
The was confined ex-convict, an James, is that Robert was McGraw when Penitentiary 5 at the State Camp that he was the statement that James has made killed; at the time Wetzel beside immediately standing no in the part slaying; and that Wetzel had cutting, brought can be into court as witness to so that James testimony peti- not known testify; nor until 1955. If January the trial, tioner during ’ it merely be would be testimony considered, should James Wetzel on an issue his trial litigated cumulative for Wetzel other witnesses testi- merits. several where the oc- point he not at cutting fied that was at the water Several but that he buckets. curred, contrary, State testified to eye-witnesses defendant. The facts, against trier found jury, say James would not state where application does occurred, only but states was when the cutting Wetzel be- standing immediately that he was say would he claim that and his witnesses Since Wetzel side Wetzel. would James buckets, presumably at the water he was be cumu- simply This would to the same effect. testify already an for Wetzel on issue fact testimony lative *35 491 jury. by Moreover, it is decided tbe submitted to and newly in- writ cannot be and the evidence, discovered purpose. 198. 2d 194, voked for tbat 76 So. every justice accord to administration of must
The judg- impartial trial man a deliberate, reasoned, has been ment. Wetzel Petitioner has received tbat. represented by court and able in tbe trial cousel both impartial trial before Court. He received a fair and tbis jury. amply supported tbe evi- a Their verdict is judgment circuit court dence. tbe of tbe Before in tbis in tbe and later affirmed, court, be filed trial setting petition nobis, for a writ of error coram Court, up alleged instant tbe raised tbe same facts and issues application. petition thoroughly considered Tbat by both 76 2d 194. He now courts and was denied. So. 60-day stay permission to file of execution and seeks Although petition another for writ of error coram nobis. procedure petition under for tbe writ tbe first tbe procedure application 76 So. 2d in an for 194, tbe permission Chapter petition to file a for tbe writ under slightly are tbe substantive 1952, different, Laws 250, aspects substantially of both are tbe same. judicata
Tbe decision of December 1954 tbe 6, is res by petitioner raised here for time. issues tbe second application petition to file a for writ of Tbe for leave 60-day stay coram error and for a of execution nobis denied. All Justices concur. MOTION TO AND EXPUNGE FROM
ON
STRIKE
A
REPLY BRIEF
THE RECORD PART OF STATE’S
THERETO,
AND THE AFFIDAVITS ATTACHED
March
On December
in 76 So. 2d
tbis
6, 1954,
as shown
styled
judgment
Court in tbe above
affirmed tbe
cause,
trial
conviction and sentence of death rendered
murder of Edgar
court
William A. Wetzel for the
against
G.
denied the
(Sonny) McGraw. On that same
we
day
nobis,
of error coram
appellant
a writ
which
of the appeal
was filed
the consideration
pending
of the case on merits.
In first filed before the affirmance petition, this *36 on alleged case its merits as it was aforesaid, some of the had prosecuting attorneys knowingly sup- pressed testimony jury the trial of Wetzel before a during that would him, have been favorable to and also used perjured him. testimony against petition sup- That was ported an of W. R. tbe by Captain Dye affidavit one affidavit of tbe William A. appellant, Wetzel.
Tbe district of attorney tbe district wherein tbe case was tbe tried, county of tbe from wbicb attorney county tbe appeal was tbe General taken, Attorney of tbe State of Mississippi, attorney tbe district from tbe district from wbicb victim homicide, tbe of tbe G. Edgar (Sonny) McGraw, bad been sent penitentiary, tbe state all in participated tbe prosecution. Tbe W. R. affiant, Dye, who made specific tbe in charges affidavit, bis stated therein that be was unable to give the names of two tbe attorneys, who, be prosecuting was bad alleging, been guilty alleged this offense. No were counter-affidavits filed in that proceeding, for presumably tbe reason that particular no prosecuting bad been attorney named as being guilty alleged this offense.
After conviction tbe and death sentence was affirmed on this Court December by 6, 1954, tbe appellant Wetzel filed another on petition January 12,1955 under Chapter Miss. 1952, designated Laws 250, as “Application Leave to File Petition for Writ Error Coram Nobis.” This statute establishes tbe procedure to be followed in a writ of seeking error coram after nobis by affirmance on appeal. this Court Tbe decision this Court on tbe in petition second 76 reported 846, So. 2d and our opinion ques- states that this decision the same “raises presented which tions were and decided court, this petition it in the first for a writ of error coram nobis exception with dealt in 194” So. 2d with one minor to the effect that one Robert a fellow James, convict penitentiary, testify support the state would of the appellant’s granted if defense he was a new trial. The petition January decision on the second rendered on 17, 1955. application
When the second
for leave to
file
January
for a writ of
coram
12,
error
nobis was filed on
1955,
date
for the execution of the death sentence had
January
been fixed for
shown
con-
1955, as
cluding paragraph
opinion affirming
the convic-
reported
attorney
tion of murder,
in
185 to 195 miles from the of Jackson, Mississippi. plight appellant’s
In view of the above stated attorney, requested he that the Court act on this second n petition immediately because thereof in order that if might prepare necessary the same denied he the papers appeal Supreme for an to the of Court the United leaving Thursday States before Jackson on afternoon, anuary justices J A 13,1955. conference of all nine of the by January was called the Chief on 12th Justice either morning anuary or the of J when 13, 1955, it was decided petition that this second should be denied for the reasons by reported opinions stated in in 76 So. 2d the Court its
494 authorized 846. Chief Justice was So. 2d The that this attorney the conference to
by notify appellant’s be pre- would opinion action been taken and that an had from the and would be rendered pared to that effect January 17th, of bench in open Monday morning court on having 9:30 General’s office o’clock, Attorney at the to given to be required waived three notice days’ petition. of second office to consideration this prior the appellant’s to given to verbal notice Pursuant the of conference the decision at the attorney of arrived with and left the Chief prepared all the he justices, ap- an for Biloxi, petition before for Justice, leaving of States peal Supreme to Court the United the forma the prisoner the affidavit of supported pauperis, January 11, on penitentiary, Wetzel at the state made manner, in that inability except to his 1955, proceed as an order to be the Justice together signed by Chief with the appeal staying such granting pauperis forma execution of the death sentence outcome pending appeal Supreme to the Court the United States. with held these in connection papers Chief Justice The appeal Supreme Court the United proposed January 17, 1955, until following Monday, States necessary so, awaiting since he deemed it he do opinion Monday, January down handing file petition of this second for leave to 1955, disposing coram On January the writ of error nobis. petition 12:25 p. m., at the Chief Justice had the 17,1955, appeal Supreme to the United States Court, for the affidavit of the Wetzel as to his appellant inability than in other and the order proceed pauperis, forma and the appeal stay such of execution of the granting *38 sentence, death marked filed the clerk of by Court, this the of this Court on the opinion petition after second for petition leave to a for a writ of coram file error nobis had been the and filed with clerk by rendered Court the 9:30 m. at a. The order the in granting appeal forma stay pauperis and of the death sentence the of execution January Monday, signed 17, the on Chief Justice was appeal petition p. and 12:25 m. the after the 1955, at appellant the marked filed the affidavit of were the clerk. appellant alleged of now before
It is in the motion the reply part seeking a brief us strike of the State’s attorneys, prosecuting which the of counter-affidavits the January Saturday, before the 15th, were filed until not Monday, petition rendered on decision on the was second procedure January in followed this the 1955, that only highly irregular of, matter and unheard “is not * * unprecedented that our but It to be conceded procedure may irregular perhaps highly have been unprecedented, the manner but, stated, hereinbefore as handling on of due to this second desire attorney part of the the this Court to accomodate defense opportunity completing work and afford him his the of appeal preparation in the connection with the Supreme he became Court United States before engaged important in trial of an in federal case Mississippi, January court on three 17, 1955, at Biloxi, days prior to fixed for of the death the date the execution opinion of his Court was of the sentence client. The attorney serving since this was then State Senator as Legislature perhaps would be too at a session of the engaged following busily during in week the trial Mississippi, Biloxi, court at to then the federal case Supreme perfect appeal United Court, his States consideration order that be shown his he should this preparation appeal might perfected, far so as the be appeal necessary papers with an in connection such Thursday on after- left before he Jackson concerned, might January that his client 13, 1955, order noon of having January without 20th, be not opportunity executed January appeal perfecting between that date. 17th and *39 filed,
The State an through Attorney lias Assistant T. General, Patterson, Joe to the motion to response strike a of brief part the State’s and the counter- reply affidavits hereinbefore mentioned he states in such response that agreed when the General’s office Attorney to sign required, the waiver of days’ the notice three before this second for leave file a petition petition to for a writ considered, of error be coram could nobis that he in signing informed the appellant’s attorney such waiver the waive General’s office did not Attorney the right to an In petition. file answer to promptly his upon application for file the second acting this leave to petition for a Attorney writ of coram the nobis, error to General’s office was not afforded sufficient time obtain the counter-affidavit from the prosecut- three of ing attorneys prior January 15, since Saturday, they in lived other of parts City State than the the Jackson; but since were on file the they before decision the rendered from actually bench, the this Court opinion is motion to strike a part of the reply brief and the State’s counter-affidavits should not be sustained.
Final decisions in open this are rendered Court court on at 9:30 a. Mondays member of the m., any may Court have a decision removed from list at any time to 9:30 up a. m. on if he a further Monday, desires in conference regard decision before the same shall become final. is Moreover, customary it not advise an in attorney a case of the reached by decision justices except conference at the time when the decision is announced from the bench in open court. Therefore, procedure since the followed the instant case the accomodation of appellant’s attorney for the reason stated, hereinbefore Court opinion appellant is in no position to complain about reply the State’s brief and be- counter-affidavits filed ing between the time attorney was advised of *40 petition decision the reached conference on his second and the date when the decision thereon was rendered from the bench. For the in our former reasons stated opinions filing rendered in this matter, heretofore the reply of the State’s brief and not counter-affidavits was deemed essential our either the or to decision on first application second for writ nobis, coram error opinion petitioner since the Court that the was presented had not a case which him to issu- entitled writ. ance
The motion now must before us therefore be overruled. All Justices concur.
ON MOTION DATE TO SET NEW EXECUTION January 9, 1956 429 84 2d So. J. Hall, appellant
The was convicted murder of the crime of County, Mississippi, in the Circuit Court of Sunflower upon appeal judgment to this Court of the trial court was 1954, affirmed December and the date 6, January of execution fixed 20, 1955. Wetzel v. for petition 76 State, So. 2d 188. Thereafter a for writ of error coram 2d denied. nobis was Wetzel v. 76 So. State, Appelant prosecuted appeal Supreme
194. an Court of the United which States, 24, on October Court appeal. ap- 1955, dismissed the said Thereafterwards pellant Supreme a filed motion in Court of the United rehearing, States for leave to file a for and on denying December 5, 1955, said court an entered order motion the said cause been remanded has to this proceedings. Court for further formerly
The date execution set this Court having passed, the State has filed motion to an- have other fixed date for execution of the death sentence upon appellant. hereby said motion The is sustained and
498 for the date hereby set 1956,
Thursday, February 9, execution. appellant’s All Justices concur. DATE TO NEW EXECUTION
ON MOTION SET 2d 750 So. January J. Lee,
In the Circuit
County, William
Court of Sunflower
murder and was sentenced
Alvin Wetzel
convicted
an appeal
suffer
death
prosecuted
He
penalty.
*41
affirmed
were
judgment
this Court and
sentence and
1955,
January 20,
on December
with
6, 1954,
Thursday,
penalty.
(Miss.)
set as
of execution of
death
date
76
for writ of
petition
So. 2d 188. On
his
date,
the same
194.
error
76 So. 2d
(Miss.)
coram nobis
also denied.
States,
appealed
of the United
Supreme
He
Court
No. Misc. at
on October
in
48
24, 1955,
and
cause
his appeal
October Term
dismissed
that court
thereof,
for leave
on
his motion
1955,
and
December
denied
6,
Court,
this
petition
to file a
for
Thereafter
rehearing.
the Supreme
after his
had been dismissed
appeal
February
9,
of
States,
Thursday,
Court
the United
set
for
(Miss.)
the execution
sentence.
1956, as the date
429. On
advanced
January 28, 1956,
84 So. 2d
this Court
from
order of
Circuit Court
Sun-
appeal
an
his
for
writ
County, dismissing
petition
flower
his
February
6,
The foregoing* facts, suggesting attention calling now fix Court a new for this date the execution sentence. Service has been made accordance with rules. Thursday, February motion sustained; The is 7, hereby fixed as the date execution of the provided by death sentence the manner law. except
All concur, McGehee, J., Justices G. who declined part. any to take