Opinion
No. 31629.
May 27, 1935.
1. CRIMINAL LAW.
Writ of error coram nobis may be obtained after affirmance of judgment and sentence by Supreme Court.
2. CRIMINAL LAW.
Judgment of affirmance is of no higher dignity than judgment it affirmed, and petition for writ of error coram nobis may be filed, allowed, and heard in trial court as fully and with as much effect as if no appeal had been taken.
3. CRIMINAL LAW.
Since writ of error coram nobis if allowed is triable in circuit court, application must first be presented to trial judge unless he is absent from his district or is incapacitated by illness.
4. CRIMINAL LAW.
Insanity of accused at time of trial is more than a defense, since it introduces element that accused was unfit to be tried, or, if he has become insane since trial, that he is unfit to be executed.
5. CRIMINAL LAW.
Where record shows that there was no demurrer to petition for writ of error coram nobis or any joinder of issue thereon or that oral evidence was taken, and inference was that trial judge did not hear petition with jury upon contested issue of fact, appeal would not lie from refusal to grant writ, notwithstanding petition was presented in term and order indicated that writ had been refused after full hearing upon merits.
6. CRIMINAL LAW.
As respects right to appeal, refusal of trial judge to issue fiat for writ of coram nobis is equivalent to refusal of fiat for an injunction or other remedial writ, and is not a judgment.
7. CRIMINAL LAW.
Refusal of Supreme Court to grant an appeal from trial court's refusal to grant writ of error coram nobis did not leave petitioner without further remedy, since petitioner could apply to judge of Supreme Court for such writ (Code 1930, sections 16, 742).
8. CRIMINAL LAW.
Writ of error coram nobis may be granted by judges of Supreme Court, although trial judge refused to grant writ and although writ is not in aid of appellate jurisdiction of Supreme Court, since writ is remedial (Code 1930, sections 16, 742).
SMITH, C.J., and ANDERSON, J., dissenting in part.
APPEAL from the circuit court of Washington county.
HON. S.F. DAVIS, Judge.
Oliver Buckler was convicted of murder, and he appeals. Appeal dismissed.
G. Ramsey Russell, of Greenville, for appellant.
For the purposes of this argument, I see little cause to enter into a lengthy technical discussion of the nature and functions of the writ of error coram nobis. This ground has been very ably covered by the learned justices of this court in their decisions formerly rendered in the cases of:
Fugate v. State, 85 Miss. 94, 37 So. 554; Howie v. State, 121 Miss. 197, 83 So. 158; Carraway v. State, 163 Miss. 639, 141 So. 342; Powers v. State, 151 So. 730; White v. State, 159 Miss. 207, 131 So. 96.
Also see: 34 C.J. 393; Fellows v. Griffin, 9 S. M. 362; Corby v. Buddendorff, 98 Miss. 98, 54 So. 84.
Coram nobis lies to reverse a judgment for an error of fact not appearing on the face of the record, which fact was unknown to the court and which, if known in season, would have prevented the rendition and entry of the judgment challenged.
Powers v. State, 151 So. 730, 168 Miss. 541.
In the light of recent decisions of this honorable court, notably the decision rendered in the Carraway case, attorneys for appellant were at the end of their legal rope. The affidavits of the responsible and credible persons, and the fact that numerous witnesses could be produced who would testify as to the insanity of the condemned man, certainly seemed to raise sufficient doubt as to his sanity to warrant appellant's attorneys in carrying the fight to the last ditch in an effort to place the evidence before a jury and give appellant a chance on this new issue which had not been raised heretofore.
I do not believe that the right to appeal should be determined by a technical consideration of the rare application or limited office of the writ, but that the judicial power should be diligent to find the remedy of appeal in regard and proportion to the right and consequences involved.
Volume VI, Number 2, The Mississippi Law Journal, pages 143, 145.
Attorney for appellant contends that, aside from the questions of legal rights already presented to this court, and aside from the considerations of the inferences and opinions surrounding and enmeshing the writ of coram nobis, this appeal could rest upon this one fact, that this was such a final judgment as contemplated by section 13 of the Code of 1930, that an appeal would lie to this court from a decision adverse to the defendant, appellant here. Even though the writ of coram nobis be considered a remedial writ, I think there can be little doubt but that the manner of its refusal in the instant case made such refusal a final judgment within the meaning of the statute.
If we are to follow the leading authorities on the question, appellant is in the position of never having had a trial. If he was insane, he should never have been placed on trial, and any trial that might have been had should be considered a nullity.
Freeman v. People, 4 Denio (N.Y.) 9, 47 Am. Dec. 216; 4 Wendell's Blackstone's Commentaries, pages 24 and 25.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The writ of error coram nobis is of common law origin, and, as we have no statute dealing with it, is governed thereby.
Carraway v. State, 163 Miss. 639, 141 So. 342; Partlow v. State, 141 N.E. 413; Davis v. State, 161 N.E. 375; Boyd v. Smith, 205 N.E. 522.
The Mississippi court, in Land v. Williams, 12 S. M. 362, seems to have already decided that after the affirmance of a judgment, the trial court has no jurisdiction of a petition for writ of error coram nobis.
2 Strange 690; Horne v. Bushell, 2 Str. 949.
When a judgment is appealed from and that judgment is affirmed by this court, jurisdiction does not reinvest in the trial court, except to carry out the mandate of the court.
Section 3406, Code of 1930; George v. Caldwell, 89 Miss. 820, 54 So. 316; Lofton v. State, 149 Miss. 514, 115 So. 592; Partlow v. State, 144 N.E. 661.
After a term of court at which a judgment was entered has expired, the court has no jurisdiction of a motion for a new trial.
Pittman v. State, 147 Miss. 593, 113 So. 348; Carraway v. State, 167 Miss. 390, 148 So. 340; Davis v. State, 144 Miss. 551, 110 So. 447; Gibson v. State, 76 Miss. 136, 23 So. 582; Lake v. State, 135 So. 124; Strange v. U.S., 53 F.2d 820; Lamb v. State, 107 So. 535.
The writ and supersedeas, or either, do not issue as a matter or right, but, in order to obtain either, it must be made to appear to the judge to whom the application therefor is made that there is reasonable certainty of error of fact in the judgment of the character, for the correction of which the writ, or its modern equivalent will lie.
Holt v. State, 78 Miss. 631, 29 So. 527; Bennett v. State, 106 Miss. 103, 63 So. 339; 34 C.J. 400; Carraway v. State, 163 Miss. 639, 141 So. 342.
This application is signed by attorneys for petitioner and sworn to on information and belief. Attached to the petition or application are two ex parte affidavits of former landlords of appellant. They do not qualify as experts on mental diseases.
There is not one single statement in the affidavits attached to the application which would "make it appear that there is reasonable certainty of error in fact" in the judgment, upon the ground that the applicant was insane at the time of committing the crime or at the time of trial or now, to the extent that he would not know and appreciate the difference between right and wrong.
The writ of error coram nobis does not lie to obtain a new trial.
White v. State, 131 So. 96; Powers v. State, 151 So. 730.
If the application for a writ of error coram nobis in this case be treated as a motion to set aside a judgment, then it may be observed that the averments of a motion are not proof thereof, and that a motion is at issue without further pleading, and it devolves upon the movant to sustain the allegations of his motion with proof.
Read v. State, 109 So. 715; Young v. State, 150 Miss. 787, 117 So. 119.
The record contains no proof to support the application, nor does it show that any proof was offered.
Appellant was indicted, tried, and convicted of murder, and on appeal the judgment and sentence was affirmed, Buckler v. State (Miss.), 157 So. 353. After affirmance and before the day of execution, appellant, through his attorneys, presented his petition, to the trial judge, but during term time, for a writ of error coram nobis, alleging therein that he was insane at the time of the trial and has been insane at all times before and since. This petition was supported by the affidavits of the attorneys appointed by the court, who state in their affidavits that they did not know of the insanity at the time of the trial and were not negligent in that respect. The petition was supported also by the affidavits of two persons who had known appellant for a number of years. The trial judge declined to order the issuance of the writ and to stay the execution, and appellant's attorneys presented to a judge of this court an application for an appeal therefrom. The judge here being under the impression that the circuit court in term time had heard the application on its merits, after issue made up, granted an appeal with an order for the stay of the execution.
The chief contention made by the state is that a writ of coram nobis is not available after affirmance of the judgment and sentence by this court. Whatever division of authority there may be in other states, we must hold that the point is not well taken in this state. At an early day, in Planters' Bank v. Calvit, 3 Smedes M. 143, 41 Am. Dec. 616, 625, it was said: "Its judgment of affirmance is then no more than a ratification of what has already been correctly done. It is of no higher dignity than the judgment it affirms, because it is merely confirmatory of it." Since a judgment of affirmance is of no higher dignity than the judgment it affirms, it follows that a petition for a writ of coram nobis may be filed, allowed, and heard in the trial court as fully and with as much effect as had no appeal been taken. The writ, if allowed, is in all cases triable in the circuit court. Therefore the application must first be presented to the trial judge, unless he be absent from his district or be incapacitated by illness or the like.
It is said also in the argument that the writ in a case such as this is excluded from our procedure by what was said by the court in Powers v. State, 168 Miss. 541, 553, 151 So. 730, 733, where, in reaffirming the established rule that by coram nobis a new trial cannot be granted upon the ground of newly discovered evidence, the court said: "Within this rule fall all defenses existing at the time of the commission of the crime, as well as all verdicts against the evidence, and newly discovered evidence." This case did not design to overrule Hawie v. State, 121 Miss. 197, 83 So. 158, 10 A.L.R. 205, for the insanity of an accused at the time of the trial goes further than a defense; it introduces the element that the accused is not fit to be tried, or, if he has remained insane, or has become insane since the trial, that he is not fit to be executed. Hawie v. State, 125 Miss. 589, 596, 88 So. 167.
We have stated that the judge of this court who granted the appeal was under the impression that the circuit court had heard the application on its merits. While the record now before us shows that the petition was presented in term time and that an order was entered on the minutes which in its language reads somewhat as if a judgment upon a full hearing upon the merits, we think, in view of the fact that there was no demurrer to the petition, nor any joinder of issue therein by reply thereto, nothing as to any oral evidence taken, nothing as to a jury, and no written instructions to a jury, that the order when taken in connection with the entire record, or rather want of record, is that what the judge actually did was to refuse the writ, declined his fiat, or the equivalent thereof, for the making up of an issue under the petition, and did not in fact hear the matter with a jury, upon a contested issue of fact. That being the case, no appeal lies; for, as said in Carraway v. State, 163 Miss. 639, 645, 141 So. 342, the refusal of a judge to issue his fiat for the writ of coram nobis is in the same class as the refusal of a fiat for an injunction or for any other remedial writ, and is no judgment at all.
It is urged in the argument that, unless an appeal be permitted, even though the action of the trial judge was no more than the refusal of his fiat upon the application for the remedial writ prayed for and was no final judgment, the petitioner would be without further remedy. If the order of the trial judge had been a final judgment, the question would arise whether under section 16, Code 1930, an appeal would lie, since the appeal would not be from a judgment of conviction, strictly speaking; but, since the order here was not a final judgment, it is a sufficient present reply to the argument made that the party has his further remedy by application to a judge of this court who is empowered to grant the remedial writ under section 742, Code 1930. That the writ of error coram nobis is a remedial writ is manifest from its intrinsic nature, and was so recognized in Carraway v. State, supra, and that the several judges of this court have the power to grant such a writ, although refused by the trial judge, and although not in aid of the appellate jurisdiction of the Supreme Court, it is clear as the power to grant an injunction or any other remedial writ, under the terms of said statutory section. The statute so empowering the several judges of this court appeared in the first general legislative act dealing with the subject after the adoption of our first Constitution, section 6 of the act approved June 22, 1822, appeared in the first Code of the state, Poindexter's Code of 1823, chapter 15, section 6, has been brought forward in every Code since that time, and has thus been recognized by every Constitution ordained for more than a hundred years. The power has been exercised by the several judges of this court time out of mind, and it has therefore passed beyond the stage of academic discussion, even if it had not been expressly affirmed, as it was in State Board v. Broom, 161 Miss. 679, 137 So. 789.
There being no valid appeal, the court is without jurisdiction or power to make any order other than for its dismissal.
Appeal dismissed.
While I am in entire agreement with everything said in the main opinion, I think there is a stronger ground upon which to rest the conclusion that the trial judge refused his fiat for the writ than the ground stated in the opinion, and that is that the petition when taken in connection with the supporting affidavits is not sufficient to justify the issuance of the writ. A petition for a writ of error coram nobis must be specific, precise, and positive in its allegations, and must be complete as to every legal requisite for the resort to the extraordinary remedy thereby prayed. When the allegations are in general terms only, it may be regarded as certain that the existing facts are not sufficient, else the allegations would have been specific, precise, and positive. And since the petition, although sworn, must be clearly and definitely supported by the affidavits of those who have personal and positive knowledge of the facts, the petition is no stronger than the supporting affidavits. Moreover, such a petition should be presented at the earliest available time, unless ample reason for the delay be shown along with the petition. Petitions for the writ of error coram nobis are often presented only a day or two before the date set for the execution of the sentence, which, if granted at such a late date, tends to discredit the law. The petition here was presented only three days before the day for the execution, and no excuse for the delay is shown with the petition.
For all the reasons stated in the foregoing paragraph, the circuit judge should have refused his fiat for the writ, and, since he should have done so for those reasons, we ought to assume here that he did refuse for exactly those reasons, and, when the order made by him is read in the light of the principles of practice stated in the foregoing paragraph, I think it sufficiently discloses that the circuit judge acted with the stated principles in mind and in obedience to them; in other words, that he refused his fiat, and did not enter upon the hearing as upon an issue made up, with the result, as stated in the main opinion, that we have nothing here from which an appeal may be taken.
I am unable to concur in holding that the refusal of the court below to hear the appellant on the merits of his petition was not a final judgment. If we leave out of view the words "writ of error coram nobis" and the archaic learning thereon, the case will be simplified and the question for decision will clearly appear.
Under our practice, a writ of error coram nobis is wholly unnecessary in order to obtain the review of a judgment rendered under such circumstances as to require the court to set it aside. All that is required is the filing of a motion or petition to that effect in the court which rendered the judgment. If the facts set forth in the petition, if true, require the setting aside of the judgment, the court should hear it on its merits and set the judgment aside or not according to the evidence then heard. Carraway v. State, 163 Miss. 639, 141 So. 342. If a stay of execution is necessary pending the hearing of the motion or petition, the court or judge thereof can grant it.
What the court below here determined was that the appellant's petition presented on its face no ground for setting aside the judgment, and therefore he was not entitled to a hearing on the merits. This ruling being in term time was a judicial act and a final judgment. What occurred here was the same as what occurred in Hawie v. State, 125 Miss. 589, 88 So. 167. It is true that the petition was there demurred to, but that added nothing to the fact that what the court there did was to decline to permit the petitioner to introduce evidence in support of the allegations of his petition. Carraway v. State, supra, is not in point on the question of the appellant's right to an appeal; for the ruling appealed from was made in vacation and was in no sense of the word a judgment. I am therefore unable to concur in the dismissal of the appeal on the ground that the order appealed from is not a final judgment.
If the order of the court should be held to be a final judgment, a serious question of the right of the appellant to appeal therefrom, under section 16, Code 1930, by which the right of appeal is conferred and limited, would arise. I shall not express any opinion thereon, but will say that section 355, p. 521, 3 C.J., is here of interest, and that the question is not foreclosed by our former decisions.
As the only question here decided is the right of the appellant to an appeal, I express no opinion on the other questions discussed by my associates.
I am authorized to say that Justice ANDERSON concurs in this opinion in so far as it holds that the order appealed from is a final judgment.