WHEELER v. STATE
No. 38615
Supreme Court of Mississippi
Mar. 16, 1953
63 So. 2d 517 | 24 Adv. S. 49
The compensation for the attorneys, as provided in the agreement, is fair, just and reasonable, and the agreement is, therefore, approved.
The Commission is directed to make a partial lump sum settlement, sufficient to cover such fee of 40% to the attorneys, as provided by the statutes. Ada Hill v. United Timber and Lumber Company, (Miss.) 68 So. 2d 420; Vestal & Vernon Agency & Western Casualty Surety Company v. Mrs. Ernestine Pittman, et al., Mississippi Reporter Advance Sheet No. 52, p. 27.
Motion sustained and attorneys fees allowed.
Roberds, P. J., and Hall, Kyle and Holmes, JJ., concur.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
LEE, J.
The grand jury of Forrest County, at the April 1952 term of court, returned an indictment against Luther Carlyle Wheeler and Elaine Forman, jointly, for the murder of Jessie James Everett. After a severance had been granted, the State elected to try Wheeler first, with the result that the jury, which heard the case, returned a verdict of guilty as charged. The judgment ordered Wheeler‘s death by electrocution, and he appeals.
The State developed the following facts and circumstances, in sequence to-wit: Ace Weathers operated an automobile agency at 1502 North Main Street in the City of Hattiesburg. On Sunday evening, March 9, 1952, about 7:30, he went to his place of business for the purpose of turning on the lights in the showroom. He discovered that the place had been burglarized, and called the police department. A few minutes later, policemen Everett and Vinson arrived in answer to his call. Everett went to the rear of the building. Weathers and Vinson went on the inside, where they heard a noise as if someone was in the storeroom. Both hurried back to the front. Weathers last noticed Vinson in the police car, and also observed a 1941 model maroon Buick, being driven by a heavy-set woman, turn the corner and go down Red Street, toward the Hercules Powder Company plant. The police car also traveled the same street, in the general direction of West Fourth Grocery, about ten blocks or three-fourths of a mile distant.
Mrs. Iva Hamm, who lived on North Street, heard the first shot, ran to the porch, saw two cars, one on each side of the street, and immediately called the police department. When she came back to the porch, the police car was still at the same place, but the other was gone.
Mr. and Mrs. M. G. Merk, in their Mercury, which looked green at night, were driving on North Street and headed toward Fourth Street. At a corner, they observed Mrs. L. P. Rush‘s Cadillac momentarily stopped. They swung around it, and saw a police car opposite the side of the Fourth Street Grocery. It was parked on the left side of the street, headed south, the right front door was open, and the blinker light was working. They saw a policeman lying on the opposite side of the street. They parked their car about twelve feet from policeman Everett, who was still alive and gasping for breath, and Merk started to walk toward him. At that time, Mrs. Mooney and her daughter came out of the house, hollering, and Merk got back in his car and drove down Fourth Street several houses to find a telephone so that he could call the police department. This being done, he and his wife returned to the scene. Everett was still breathing and four or five persons were then present.
The proof showed that Everett, in uniform, had been shot one time in the breast and was lying on his back,
Bill Anderson was at home, at 411 Dixie Avenue, about 7:30, when he saw a 1941 maroon Buick, driven by a heavy-set woman, traveling at terrific speed, run into a ditch in front of his house. The speed was so great that it also ran out of the ditch. Anderson was an automobile parts man and was positive in his description of the car.
All of the foregoing events occurred between 7:30 and 8 o‘clock that evening.
Later policemen Jones, White and Andrews were on patrol duty, when they received over their radio from headquarters a report that someone had attempted to steal Emmett McKinney‘s automobile at his home on 507 North Nineteenth Avenue, and that McKinney was forced into his house at pistol point. These policemen knew McKinney to be a reputable citizen, and proceeded immediately to his home. The radio report was confirmed, and McKinney described the culprit as being a man five feet seven or eight inches tall, wearing a water repellant jacket with a fur collar, khaki pants, and a brown felt hat. They radioed this description to the other officers, and a car, in which policemen Maddox, Sullivan and Creel were patrolling, acknowledged receipt of the description. Shortly afterwards, these three policemen were patrolling on Hardy Street when they observed a man, walking toward town, who fitted the identical description of the man who had attempted to steal McKinney‘s automobile. They hailed him, put him under arrest, and as a result of the search incident thereto, took from his person a 38-caliber Smith & Wesson pistol and a considerable number of cartridges from both pockets. Thereupon Maddox
The bullet from the body of policeman Everett, together with the pistol which was taken from Wheeler, were forwarded to the Federal Bureau of Investigation at Washington, D. C., and one of its firearms experts testified that the bullet was fired from the pistol.
Several days after the killing, a 1941 maroon Buick car, without a tag, but with two tags lying nearby, was found in an abandoned condition, on a log road, several miles from Hattiesburg. From the car and a radio therein were lifted several fingerprints. Prints of Wheeler were taken after his arrest. All of these prints were forwarded to the Federal Bureau of Investigation, and an expert from that office identified the fingerprints from the car and radio as those of Wheeler and Elaine Forman.
Wheeler testified for himself that he was from Jacksonville, Florida, and is a typewriter mechanic. He and Elaine Forman arrived at Hattiesburg about two o‘clock that afternoon. They ate and went to a movie. They then ate again and went out in their 1941 maroon Buick, with no particular business in mind, though he was looking for a boarding house. His version was that, as he and Elaine Forman were driving at about twenty miles an hour, he heard a siren, then a shot, and saw two cars behind him. He immediately stopped. The officers got out of their car and went to the other car. There was some talk between them about tools. The officers then brought the two men over to his car. One of the officers first opened the car door and then the trunk, and told him to get out. He explained that he had done nothing. As he got out, one of the officers hit him on the head and knocked him to the ground. They then told him to leave, but he was in a dazed condition, and could not do so. About that time, shooting started. He tried to get under his car, but Elaine Forman became scared and drove off.
Mrs. Dan Moody, and her two daughters, Joyce and Mrs. L. W. Booker, testified that they were in the Moody home on the east side of the street, at the corner of West Fourth and North Streets, when they heard shooting. After it was over, and they went out of the house, a man on the west side of North Street—Everett—was calling for help. The only two cars in the street at that time were the police car and a green car. Both front doors of the police car were open, its lights were on, and the red light was blinking. The green car took off down Fourth Street.
Evidently the purpose of their evidence about the green car was to corroborate Wheeler‘s version that the killers were in a green car, and that they tossed the bag to him after Elaine Forman had driven the 1941 maroon Buick away. But the evidence by the State negatives this theory. It puts a green car at the scene—Mr. and Mrs. Merks Mercury—and explains that the green car seen by the Mooneys was in fact the Merk car, and that it came upon the scene after the shooting occurred, and after Elaine Forman had driven the Buick away.
Wheeler‘s theory, that he was a victim of circumstances, was in direct conflict with the State‘s theory,
The evidence, both direct and circumstantial, presented an issue for the jury, and there was no error in overruling the appellant‘s request for a directed verdict at the close of the State‘s case.
Since appellant‘s version was substantially contradicted in material particulars by credible witnesses, physical facts, and facts of common knowledge, it did not come within the rule announced in Weathersby v. State, 165 Miss. 207, 147 So. 481, and the cases which follow that principle, and the trial court was not in error in overruling his motion for a directed verdict at the close of all of the evidence.
Appellant filed three preliminary motions to the following effect: (1) To quash the indictment on the ground that the entire county had a fixed opinion in the case; that the court charged the grand jury to indict appellant and Elaine Forman; that nonpayers of poll taxes were excluded from the grand jury; and that Negroes were systematically excluded from service on the grand jury. (2) To quash the special venire and the jury panels for the reasons stated in (1). And (3) to change the venue of the trial.
The evidence by the appellant on these three motions covered a wide scope. It had to do with publicity through the newspapers and over the radio; as to the public interest immediately following the announcement of the killings; the assemblying of a large number of people in and around the police headquarters; the efforts to apprehend the killers; ill-treatment of the defendant; that the public mind was inflamed against the defendants and that they could not obtain a fair trial; that Negroes and nonpayers of poll taxes were excluded from jury service; and the charge of the presiding judge to the grand jury.
The trial judge heard the evidence on these preliminary matters for three days, and, on motion of the appellant in order to save time and trouble, made the evidence as to prejudgment and ill-will applicable to all of the motions.
The action of the court in overruling these motions is assigned as error.
Dealing first with the motion to change the venue, it is obvious that the killing of two policemen of the City of Hattiesburg, while on duty, would cause considerable publicity both through the newspapers and over the radio. Of course, some people are impulsive and jump to conclusions from a mere smattering of the facts. But, the great majority of people withhold their judgment until they ascertain all of the facts. One may feel that, assuming a certain state of facts to exist, his conclusion would be thus and so; but, not knowing whether such assumption is true or false, he is able to cast it out of his thinking, and, if chosen as a juror, will look upon the accused as innocent, disregard what he has heard, and require the State to prove his guilt beyond every reasonable doubt.
A number of witnesses, testifying for the accused, were of the opinion that a large majority of the people with whom they talked held fixed opinions that he was guilty. A greater number, testifying for the State, were of a contrary view, and expressed the opinion that the accused would be accorded a fair and impartial trial in the county. Forrest is one of the most densely populated counties in the State. A jury was obtained from the original special venire of seventy-five, plus the two regular juries for the week, and plus an additional venire of sixty-two, or a total of 161. Of this number, eighteen were excused on account of partial or fixed opinions, and sixteen because of conscientious scruples against the infliction of the
On this proposition there is great similarity in the facts of this case and the case of Shimniok, et al. v. State, 197 Miss. 179, 19 So. 2d 760. In that case, the deceased was an ex-sheriff and a very popular man in Wayne County. The defendants were strangers. Much publicity had been given to the killing through the newspapers and otherwise. The evidence for the State was to the effect that the case had not been prejudged by the public and that the appellants could obtain a fair and impartial trial before a jury from that county. From the special venire of 150 men, it appeared that ten were excused on account of fixed opinions. The Court in its opinion referred to the fact that the trial judge saw the witnesses, who testified on the motion, and the potential jurors as they were being questioned, and concluded that he was in much better position to judge of their credibility than was the appellate court. Under such circumstances, it was there held that the trial judge had not abused his discretion in overruling the application for change of venue. See also Wexler v. State, 167 Miss. 464, 142 So. 501; Dalton v. State, 141 Miss. 841, 105 So. 784; Musselwhite v. State (Miss.) 54 So. 2d 911.
For like reasons, we are unable to say that the trial court abused its discretion; and we, therefore, hold that no reversible error was committed in overruling the application for a change of venue or in overruling the motion to quash the indictment on the ground of ill-will or prejudgment of the case.
In this connection, the appellant also complains that the trial court‘s refusal to permit him to introduce
To his motion was attached the statutory affidavit, in proper form, which was sufficient to make out a prima facie case. However, he did not rest on his prima facie case, but produced a number of witnesses, who testified as to the existing public sentiment and the prejudgment of the case. Besides, he made a motion that, to save time and trouble, such evidence should apply to all the motions, that is, to quash the indictment, the jury panels, and for the change of venue. The court did not sustain the motion at that time, but, subsequently did so. In other words, later in the hearing, the court did exactly what appellant requested. There must be some measure of consistency in one‘s position. The additional evidence, which he proposed, would have been merely cumulative. The court had already spent three days in the hearing of these motions. Since we have held that there was no error, in the first instance, in refusing to grant a change of venue, neither do we think that the trial judge was in error in this particular.
As regards the assignment that non-poll-taxpayers were excluded from service on the grand and petit juries, it must be borne in mind that
As regards the assignment that the trial court erred in overruling his motion to quash the indictment for the reason that Negroes were systematically excluded from jury service, it must likewise be remembered that appellant is a member of the white or Caucasian race, and that the grand jury which indicted, and the petit which tried, him, were members of that race. Hence he is in no position to claim that he is the victim of racial discrimination. His own race has thus dealt with him. In the case of Patton v. Mississippi, 332 U. S. 463, 92 L. Ed. 76, the Supreme Court of the United States, in its opinion, said in part: “Sixty-seven years ago this Court held that state exclusion of Negroes from grand and petit juries solely because of their race denied Negro defendants in criminal cases the equal protection of the laws required by the Fourteenth Amendment.” The opinion also said: “When a jury selection plan, whatever it is, operates in such way as always to result in the complete and long-continued exclusion of any representative at all from a large group of Negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand.”
The appellant also assigns as error the action of the court in overruling his motion to quash the indictment on the ground that the trial judge charged the grand jury to indict the appellant and Elaine Forman.
The entire charge was made a part of the record. It points up the sacred duty of grand jurors; that sometimes the duty is attended with embarrassment and is like unto the soldier who is called on to make a great sacrifice for his country; that the liberties of citizens of this country were purchased with blood; that sometimes there is the inclination to be negligent about those inheritances;
“I am informed, and it is no use for a man to stick his head in the sand like an ostrich and try to dodge, I am informed that recently in this county some people have come into the county and taken the lives of two soldiers who have paid the supreme sacrifice to uphold the law. Their blood cries out from the ground to you today. Will you be a good soldier, or will you hide in the dugout?”
Thus the question is whether or not the above language in the judge‘s charge had the effect of dictating to or coercing the grand jury into returning an indictment against the appellant. This Court, in Blau v. State, 82 Miss. 514, 34 So. 153, laid down the following rule: “In directing the attention of the grand jury to particular offenses or classes of offenses, to crime and the necessity of suppressing it, a very large, necessary, and useful discretion is conferred upon the presiding judge, and this court will not undertake to control that discretion unless manifestly abused.”
In Fuller v. State, 85 Miss. 199, 37 So. 749, the rule in the Blau case, supra, was quoted, and the Court added: “This was announced as the conclusion of this court after an able discussion of the powers and duties of the circuit judge, in the course of which numerous authorities are
The error, as pointed out in the Blau case, supra, was that the grand jury had been in session two or three weeks; it had examined numerous witnesses concerning his business of dealing in futures; it had failed to indict him, and had filed its final report and had asked to be discharged. It was at this juncture that the presiding judge delivered a special charge, saying that he did not know why they had failed to indict Blau; that he was a guilty party and they had sufficient evidence; that, if they did not indict, the town would be overrun by bucket shops before another grand jury. The judge thereupon sent the grand jury back to their room for further consideration of the case. This Court held that the judge went too far, and that his action constituted dictation and coercion.
The error in the Fuller case, supra, came about in this way: While the presiding judge was especially charging the grand jury in regard to the illegal sale of liquor, he asked the question, “Have you ever heard the name
It is argued that, when the judge said that “some people have come into the county and taken the lives of two soldiers who have paid the supreme sacrifice to uphold the law,” he was referring to the killing of the two policemen, and that it was committed by persons from out of the county, namely Wheeler and Elaine Forman, who were actually nonresidents. But he did not call the names of policemen Everett and Vinson, if they were the “soldiers” to whom he was referring. Neither did he name Wheeler and Elaine Forman, if they were the people who “have come into the county and taken the lives of two soldiers.” As one appeal for the discharge of duty, he said: “Their blood cries out from the ground,” evidently remembering the Biblical story where Cain, as a result of envy and jealously because of the preference of Abel‘s offering over his own, slew his brother, and the Lord asked “What hast thou done? The voice of thy brother‘s blood crieth unto me from the ground.” Genesis, Chapter 5, Verse 10. As another appeal, he asked, “Will you be a good soldier, or will you hide in the dugout?” He did not tell them to indict these people—he did not tell them to indict Wheeler and Elaine Forman. Is it not reasonable to conclude that the judge was simply calling for an investigation of this homicide?
It is a matter of common knowledge that a grand jury is an inquisitorial body. It does not determine guilt. It hears the witnesses for the prosecution only, and returns indictments where, from its investigation, it has reasonable ground to believe that an accused person is guilty.
Appellant also contends that the introduction of a photograph of the deceased Everett in evidence was error because it had the tendency to inflame the minds of the jury. This photograph was shown to be accurate and that it clearly indicated the place and position of the body where the bullet entered. It was pertinent and admissible for that purpose. And as was said by this Court in Price v. State, 54 So. 667, (Miss.) “The defendant cannot complain of such portrayal of a condition which he himself brought about.” See also Seals v. State, 208 Miss. 236, 44 So. 2d 61; Hancock v. State, 209 Miss. 523, 47 So. 2d 833.
Appellant contends that his arrest was unlawful. In the category of instances, where, under
Upon receiving information that someone had attempted to steal Emmett McKinney‘s automobile, offi-
This brings us to the further assignment that the court erred in admitting the statement of the appellant that he shot the policemen because they were shooting at him. There was objection to this statement, and the evidence was heard out of the presence of the jury. Officer Sullivan testified that they hailed Wheeler and put him under arrest; they searched him and found the pistol and cartridges; and that there were no threats, promises or harm in any way. When they got the pistol, it had burned
Appellant also assigns as error the refusal of the trial court to admit evidence, other than the defendant himself, as to ill-treatment inflicted upon him after leaving the scene of his arrest and elsewhere.
Reprehensible as such conduct might be, if such was true, it clearly had no bearing on the issue as to whether or not the appellant killed and murdered the deceased.
Appellant complains at the refusal of three requested instructions Numbered 1, 14 and 17. Numbers 1 and 17 were in the identical language of instructions which were approved in Fisher v. State, 150 Miss. 206, 116 So. 746, and Jones v. State, 141 Miss. 894, 107 So. 8, respectively, and should have been given. However, the principles in the two refused instructions were covered in the nineteen instructions which were given by the court for the appellant.
Instruction Number 14 was the so-called “falsus in uno, falsus in omnibus,” and this Court has repeatedly held that this instruction should not be given. See Crawford v. State, 54 So. 2d 230, (Miss.), and the authorities there collated.
During the trial appellant brought out the fact that the C. & E. Sandwich Shop was burglarized on the occasion of the killing and that a green automobile had been seen at the place. It was the theory of the appellant that a green automobile was at the scene of the killing. It was conceded, however, that this burglary occurred at least an hour or two after appellant had been placed in jail. After continued questioning of witnesses by appellant‘s counsel on this subject, the county attorney said: “For the purpose of saving time I would like to announce to the court that three men have already been indicted for the C. & E. Sandwich burglary, and we have their confessions.” Appellant complains that the court erred in overruling his objection and motion for a mistrial on account of that statement. Putting aside the propriety of the statement, we are unable to see how it harmed the appellant. If the green car which appellant claimed to have seen at the time of the killing was the green car at the sandwich shop, and was used for transportation by the three men, their confession of the crime of burglary ought to have profited rather than harmed appellant,
Thorough consideration has been given to each assignment of error and to the whole record. The evidence was sufficient to sustain the verdict. The instructions sufficiently and clearly announce the law of the case. The appellant was ably defended by counsel, who were vigilant to preserve and obtain for him every right to which he was entitled under the law. We find no reversible error in the record.
The penalty for murder in this State is death unless the jury fixes it at life imprisonment or the members thereof certify that they are unable to agree upon the punishment. Evidently the jury, in this case, could find no fact or circumstance, which, to them was sufficient justification to extenuate the penalty. They were evidently convinced beyond reasonable doubt that policeman Everett and his fellow-officer surprised the appellant as he was engaged in the commission of a burglary, and that, as he fled, they pursued for the purpose of apprehending and arresting him, and that, as the cars stopped and the officers stepped from their vehicle, Wheeler shot them to death.
Accordingly, the judgment of the trial court ought to be, and is, affirmed; and Friday, May 8, 1953, is hereby set as the date for execution.
Affirmed and Friday, May 8, 1953, is fixed as the date of execution.
McGehee, C. J., and Hall, Kyle, Holmes, Arrington, Ethridge and Lotterhos concur. Roberds, J., dissents.
ROBERDS, J., Dissenting.
I think the nature of the charge to the grand jury was ground for quashing the indictment. The full purport
The charge began by reminding the grand jurors they were then called upon to do their duty as citizens and to their government; that “it is a great duty, it is a solemn duty“; that they might be embarrassed in the discharge of that duty, and “sometimes you will be in the predicament of the soldier who was called upon to make a great sacrifice for his country.” It then reminded the jurors of the fundamental principles underlying our Government and that these were bought by the blood of our forefathers, and “it took courage and blood to purchase them and hand them down to us“, but that sometimes “we are” inclined to neglect and dissipate them. Then follows this statement: “You know, when—if you will pardon me for a self-reference—in World War One when I was yonder in Belleau Woods I learned what the test of a good soldier was, and I learned that in the supreme test some men would stand, and then some would throw down their guns and run, or hide in the dugout, yet, they were being called upon to sacrifice to preserve these inherited principles“; that some men, when called upon in the supreme test, “fail to stand up to the test, they throw down their guns and run or hide out in the dugout“, and then “a man who cannot stand in the face of the test is not worthy of the name of an American citizen, he is ready to waste his inheritance for his own personal gain“. Then immediately follows this statement: “I am
This Court has set out the guiding prohibitions and principles in such cases in this language: “It is the province of the Circuit Judge and his duty to inveigh against crime of all kinds and in every quarter, but it is a usurpation of power to denounce individuals, or to specifically direct the attention of the grand jury to any named person. It is not every man who is accused of crime who is guilty, and every man, whether accused or not, is entitled to the presumption of innocence until legally convicted. This presumption is binding upon the petit jury, and stands as a witness in favor of the defendant when on trial. It guards him before the grand jury until their investigations have produced proof believed by them which overthrows it. It protects him from the Circuit Judge in his charge to the grand jury, and forbids that any word from that high station, so apt, on account of its dignity and importance, to influence by its slightest utterance, should prejudice the grand jury when it enters upon the consideration of violations of the law. . . . If the grand jury is to be kept free, as has been repeatedly announced by this court, from all undue outside influences, of what grave importance is it that this undue influence should not proceed from the very officers to whom they must look for guidance, and whose decision and judgment they must take as the law? And the general observations made upon this line apply with equal force to all utterances of presiding judges,
“The deliberations of the juries, both grand and petit, must be preserved inviolate from all outside influences, no matter from what source they emanate. The judge, by express statutory enactment, is forbidden to ‘sum up or comment on the testimony, or charge the jury as to the weight of evidence.’ It is certainly contrary to the policy of our law, and flagrantly violative of the fundamental principles of justice, for a judge to inject his opinion of the guilt of a defendant, based merely upon rumor or private information, into the minds of the jurors who may be impaneled to pass upon the question of his guilt or innocence.” Fuller v. State, 85 Miss. 199, 37 So. 749.
That quotation contains two prohibitions—that the trial judge shall not direct the attention of the grand jury “to any named person“, nor shall he influence or induce the grand jury to return an indictment against any particular person.
Did this charge, in effect, name any person? That, of course, can be done specifically or by inference. The charge said “I am informed that recently in this county some people have come into the county and taken the lives of two soldiers who have paid the supreme sacrifice to uphold the law“. Now, both appellant and Elaine Foreman were nonresidents of Mississippi; they had come into the county; they were in jail in that county. This was all disclosed by wide publicity throughout the county. Two policemen had been killed—the “two soldiers“. We must presume that the jurors were men of average intelligence. So assuming, the conclusion is inescapable they knew to whom reference was made in that charge. They knew it as certainly as though the names of Wheeler and Foreman had been called. This was not a general reference to the crime of homicide, and the desirability of enforcing the law against it. It, in
Did the wording and context naturally have the effect of influencing, or inducing, the jurors to find and return an indictment against Wheeler and Foreman? They were jointly indicted. It would be difficult to conceive of a more effective build-up of sacred principles which the jurors would violate if they failed to indict appellant. It was their duty to their fellow citizens, their government and their community to indict. And what if they did not? Then they lacked courage, they were slackers, they were cowardly soldiers running away, or throwing aside their guns and hiding in dugouts. They were asked “Will you be a good soldier, or will you throw down your gun and run, or will you hide in the dugout?” Can anyone imagine this jury making a final report to the trial judge and asking to be discharged without having brought in an indictment of this appellant under the circumstances here?
I confess great reluctance in writing this dissent. I wish my sense of duty had led me into a different path. But once that duty is determined I have no choice. It transcends admiration and friendship, and, for that matter, all other considerations. The supreme duty of the courts is to administer justice—to the guilty as well as the innocent. It is for that purpose courts are created. It is their one ultimate aim. Upon that foundation rests the pillars of our government and civilization and in that temple abide the security and happiness of the people.
ON APPLICATION FOR WRIT OF ERROR CORAM NOBIS AND FOR WRIT OF CERTIORARI
ROBERDS, P. J.
On January 20, 1954, Luther Carlyle Wheeler filed in this court an application for permission to present to, and have heard by, the trial judge of the circuit court
Upon consideration of the application, with the exhibits, being all the proof before us, we adopted the unusual procedure of entering an order, dated January 25, 1954, inviting Mr. Wheeler and the State, either or both, to present to us in open court, if either cared to do so, evidence in addition to that shown by the application and exhibited affidavits, bearing upon the question of sanity vel non of applicant, specifying in the order that such further hearing would begin at two o‘clock P. M. Thursday, January 28, 1954. At the stated time the court was duly convened and opened and counsel representing applicant and counsel representing the State were present. Upon inquiry by the Court counsel for applicant stated in open court he did not care to offer any additional evidence or proof and counsel for the State likewise announced that in view of the statement of counsel for applicant the State would offer no additional evidence. Therefore, the question presented to us is whether the petition before us, with its accompanying affidavits, establish, with sufficient degree of certainty, the necessary facts to authorize us to grant the application. We have not yet laid down the rule by which that question, in this kind of proceeding, is to be tested. We now do that. It is that before we are authorized to sustain such application the evidence before us must establish that there is a reasonable probability the applicant is insane and that his execution should be stayed. See Lewis v. State, 155 Miss. 810, 128 So. 419. Does the evidence before us do that? The evidence consists of affidavits of Wheeler and Mrs. Elaine Foreman Wheeler and Roy Strickland.
Mr. Wheeler made affidavit to the averments in his petition. In the petition he averred his conviction and sentence and the affirmance thereof by this Court and that February 5, 1954, was designated by this Court as the date for execution. He made other averments of fact bearing upon alleged prejudice of a juror against him hereinafter mentioned. On the question of his sanity he stated “Petitioner would show that since his said case was affirmed by the Supreme Court of Mississippi on March 16, 1953, that he has become insane, and that he is now insane.”
The affidavit of Mrs. Wheeler averred that, at the time she made it, she was confined in the jail at Hattiesburg, Mississippi, “and that in her opinion, Luther Carlyle Wheeler is insane.”
The affidavit of Strickland stated that at the time he made it he was imprisoned in jail at Jackson, Mississippi, “and that in his opinion, Luther Carlyle Wheeler is insane.” That is the proof. As to the affidavit of Wheeler, he is in the anomalous position of asking us to accept his statements of fact, made upon conscious oath, presumably appreciating and understanding the meaning of an oath, and at the same time accept his conclusion that he is insane. And as to his statement of fact directly upon his mental condition he simply states a conclusion, without detailing a single act or circumstance to support it.
As to the affidavit of Mrs. Wheeler, it will also be noted she does nothing more than state a layman‘s opinion. It is not shown whether she has even seen Wheeler since his conviction. She sets forth no act, conduct, or circumstance on which to base her conclusion. She says she was in jail at Hattiesburg when she made the affidavit. Wheeler was in jail at Jack-
Strickland also stated a mere conclusion. He states no fact or act or circumstance on which to base it. He does not aver he has seen Wheeler since Wheeler‘s conviction. He was in jail when he made his affidavit. His conviction is also on appeal to this Court.
These affidavits, under these circumstances, afford little, if any, proof of the mental condition of Wheeler. Certainly they do not establish a reasonable probability that Wheeler‘s mental condition is such that he ought not to be executed. It is evident that based upon that record a hearing before the trial judge would be a useless procedure.
The petition also recited, as a ground for granting its prayer, that petitioner and his counsel had learned since his conviction that John M. Karoly, one of the jurors who convicted him, had stated before the trial “If I had a chance, I‘d tell you what I would do, I would burn him,” which attitude was unknown to petitioner and his counsel at the time of the trial. We are not justified in granting the petition on that ground for two reasons;
First, this Court has held in Fugate v. State, 85 Miss. 94, 37 So. 554, that this question cannot be raised by writ of error coram nobis, and
Second, because Karoly has made an affidavit, which is a part of the record before us, denying that he made any such statement, and asserting, under oath, that he had never, before the conviction, expressed any opinion as to the guilt or innocence of petitioner. The burden is, of course, upon petitioner to establish to a rea-
Upon the convening of this Court at two o‘clock P. M. January 28, 1954, as above herein shown, petitioner filed in this Court what is styled “Amended Application for Leave to File a Petition for a writ of Error Coram Nobis in the Circuit Court of Forrest County, Mississippi.” That document is signed by counsel for petitioner. No affidavit is attached thereto. No ground for granting the petition is stated in addition to those asserted in the original petition. Therefore, as an application for permission to file a petition for writ of error coram nobis in said circuit court, it is, for the reasons hereinabove stated, overruled.
However, said amended pleading prays, in the alternative, for a writ of habeas corpus to bring the body of petitioner before a designated proper legal tribunal because, as he says, his constitutional rights have been denied him and he is being illegally imprisoned. The instrument states it is to be considered an application for writ of habeas corpus in event the application for permission to file a writ of error coram nobis is not the proper procedure. As above stated, we have accepted the application and passed upon it, and this alone might dispose of the petition for writ of habeas corpus. However, in view of the gravity of this case we will proceed to consider the habeas corpus application on its merits.
As stated above, the amended petition, asking in the alternative for issuance of a writ of habeas corpus, has no affidavit attached, and, therefore, does not comply with the requirements of
But, aside from the foregoing considerations, and looking to the merit, or lack of merit, supporting such application, it is noted that
This is not to be taken as a precedent to first request of this Court the issuance of a writ of habeas corpus. Our function is to review the action of the lower courts in disposing of application for such writs. We have dealt with the merits of the habeas corpus application
This disposition of the pending matter in no way precludes or prejudices petitioner from resorting to any remedy to which he considers he is entitled other than the writ of error coram nobis.
All justices concur in the result reached on the merits.
ETHRIDGE, J., Specially Concurring.
I would dismiss Wheeler‘s petition for an order directing the trial court to allow the filing of a petition for a writ of error coram nobis, for the reason that the writ does not apply to supervening insanity. By considering the petition on the merits, the controlling opinion, in my view, now for the first time extends coram nobis beyond facts which existed at the time of the trial, and applies the writ to facts arising since the judgment, which is a situation for which it was never designed and in contradiction of all of the established precedents concerning it.
The following limitation on coram nobis is established by all of the authorities both in Mississippi and at common law, and is concisely stated in 31 Am. Jur., Judgments, Sec. 804, page 324: “The appropriate use of a writ of coram nobis or coram vobis is to correct errors preceding the rendition of the judgment, and the general rule is that such a writ is not granted to relieve from consequences arising subsequent to the judgment.” Among the many Mississippi cases so holding are Fugate v. State, 85 Miss. 94, 37 So. 554 (1904); Carraway v. State, 163 Miss. 639, 141 So. 342 (1932); and Powers v. State, 168 Miss. 541, 151 So. 730 (1932).
The only possible basis upon which coram nobis can be held to be available where insanity occurs after judgment is the decision in Mitchell v. State, 179 Miss. 814, 176 So. 743, 121 A. L. R. 258 (1937). But that case did not involve insanity occurring after the judgment, but only a charge of insanity at the time of the commission of the crime and at the time of the trial. In Hawie v. State, 121 Miss. 197, 83 So. 158 (1919), and ibid., 125 Miss. 589, 88 So. 167 (1921), it was held that the writ of coram nobis applied to a case of insanity in existence at the time of the trial and conviction, where it was not then known by counsel or the court and was not raised in the trial court. In Mitchell v. State, supra, the Court overruled the decision in the Hawie case that insanity at the time of the trial can later be raised by coram nobis. It was held that after final judgment that issue is res judicata. The Court then said on page 826 of 179 Miss.: “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
In other words, the Court recognized in the Mitchell case that it had no issue there of supervening insanity, and in the concurring opinion of Chief Justice Smith, it was again expressly stated that neither the petition nor the evidence raised the issue of insanity arising after judgment. Hence both of the opinions in the Mitchell case expressly recognized that the court had there no issue involved of supervening insanity. That decision simply stated that where such occurs, the Court would “leave the door open” to suspend a judgment upon that issue. But the case did not decide or say that coram nobis would be the proper remedy where the insanity arises after judgment.
Nor do I think that the Court had any intention by the opinion in Mitchell of enlarging by an obiter dictum the scope of the writ. That is clearly confirmed by the above quoted statement in the controlling opinion that the Court placed the issue of insanity “upon the same basis of fact as that found in Bennett v. State,” supra. Bennett had been convicted of bigamy, and filed a petition for writ of coram nobis on the grounds of the existence of certain facts at the time of the trial which were not known to the court, namely, that he had been legally divorced from his first wife and that his second marriage was void. The Court there held that these defenses could not be raised by coram nobis, since they existed at the time of trial and were adjudicated by that judgment. Hence the ratio decidendi of the Mitchell case is that coram nobis does not apply to insanity existing at the time of trial. The opinions therein point out that the Court was not there concerned with supervening insanity.
The only case prior to the present one in which
In brief, coram nobis is limited to facts in existence at the time of the trial and does not apply to supervening insanity. This is the undisputed general rule, and no Mississippi cases, in my opinion, have held to the contrary, but in fact the Musselwhite decision clearly indicated that we would conform to that rule.
In 49 A. L. R. 804 (1927) is a concise discussion of the cases on “insanity supervening after conviction and sentence of death,” and on the manner of raising that
For these reasons and with deference, I think that the holding of the controlling opinion is in error in applying
Moreover, by extending the writ of coram nobis to supervening insanity, this court is assuming a jurisdiction which is not appellate or revisory in nature, and those are the areas of our jurisdiction. The result may well be the investing in the Court of one type of original or nisi prius jurisdiction. Accordingly, I respectfully differ from the basis of the controlling opinion. I would dismiss the petition of Wheeler for the reason that we have no jurisdiction of an original petition for coram nobis for supervening insanity. Both the controlling opinion and this one reach the same ultimate result, in that the petition is denied or dismissed, but the difference is that the controlling opinion denies the petition on the merits, and I would dismiss it for the reason that I think we have no jurisdiction to consider it.
McGehee, C. J., and Kyle and Gillespie, JJ., concur in this opinion.
ON MOTION TO FIX NEW DATE FOR EXECUTION OF SENTENCE
MCGEHEE, C. J.
The appellant, Luther Carlyle Wheeler, was indicted, tried and convicted in the Circuit Court of Forrest County, Mississippi, on a charge of murder and sentenced to suffer death by electrocution. The date fixed for the execution of the sentence by the Circuit Court of Forrest County was July 3, 1952.
On the appeal prosecuted to the Supreme Court of Mississippi the conviction and death sentence was affirmed on March 16, 1953, and Friday, May 8, 1953, was fixed by this Court as the date for the execution of the sentence. A suggestion of error was filed in this Court on March 28, 1953, and overruled on April 13, 1953.
Thereupon an appeal was prayed for to the Supreme Court of the United States from the final judgment of this Court, and such appeal was granted by the Chief Justice of this Court on April 20, 1953, as prayed for.
The Supreme Court of the United States, treating the appeal as a petition for a writ of certiorari denied the same on October 19, 1953, and pursuant thereto a mandate was issued from the Supreme Court of the United States to this Court on December 4, 1953, after a petition for rehearing had been denied.
The date for the execution of the death sentence of the appellant as heretofore fixed by this Court having passed during the appeal to the Supreme Court of the United States, and the said court having taken final action
Motion sustained, and Friday, February 5, A.D., 1954, is hereby fixed as the date for the execution of the death sentence of the said appellant, Luther Carlyle Wheeler.
All Justices concur.