Opinion
No. 35653.
May 8, 1944.
JUDGES.
The circuit judge in vacation has no authority to fix a day for the execution of a sentence (Code 1942, sec. 2559).
APPEAL from the circuit court of Harrison county, HON. L.C. CORBAN, Judge.
Bidwell Adam, of Gulfport, for appellant.
The appellant, Eddie Simmons, alias Doc Simmons, was convicted in the circuit court of Harrison County, Mississippi, at the regular December, 1942 term of the circuit court of the crime of rape, and was then and there sentenced by said court to be put to death by electrocution; the date of his execution was fixed by order of the court on February 5, 1943; however, his case was appealed from the circuit court to the Supreme Court of the State of Mississippi, and final judgment was rendered in said cause by the Supreme Court affirming said cause, and a death warrant was issued by the Supreme Court, and it was ordered that said appellant be put to death on November 18, 1943, by electrocution as provided by law in the State of Mississippi. Thereafter, upon petition of appellant, the Supreme Court of Mississippi, acting by and through its Chief Justice, granted a stay of execution for the purpose of allowing said cause to be appealed to the Supreme Court of the United States, and said appellant was not executed on the 18th day of November, 1943, the date fixed for said execution by the Supreme Court of Mississippi; said stay of execution of said sentence was granted for a period of 60 days to enable the said appellant to apply to the Supreme Court of the United States for a review by writ of certiorari. The 60 day period expired without any proceedings being had on behalf of the appellant and thereafter a motion was filed in the Supreme Court of Mississippi seeking to fix a date of execution of the death sentence of appellant, and the Supreme Court of Mississippi, in the case of Simmons v. State, 196 Miss. 102, 16 So.2d 617, overruled said motion. After the Supreme Court declined to fix a new date of the death sentence of appellant, but left the discharge of that duty to the court below, thereafter the district attorney filed a petition for a writ of habeas corpus, under Section 1311, Code of 1930. The petition for writ of habeas corpus brought by the able district attorney was filed March 7, 1944, in vacation. The order of the court fixing the date of execution entered on the 10th day of March, 1944, was in vacation. The motion of appellant to set aside the order fixing the date of his execution was filed March 27, 1944, also in vacation. After the learned circuit judge overruled the motion to set aside the order, the circuit judge did enter an order allowing an appeal to the Supreme Court of the State of Mississippi by the appellant with supersedeas and stay of execution.
It is our contention that a circuit judge is without any authority of law whatsoever in vacation to impose a sentence in a criminal case.
Scott v. State, 70 Miss. 247, 11 So. 657; Ex parte Henry A. Fleming, 60 Miss. 910; Ex parte Bell, 56 Miss. 282; Lewis v. State, 155 Miss. 810, 125 So. 419; White v. State, 185 Miss. 307, 188 So. 8; State v. Pope, 110 Mo. App. 520, 85 S.W. 633, 634; Butts v. Armor, 164 Pa. 73, 30 A. 357, 360, 26 L.R.A. 213; Mason v. Woerner, 18 Mo. 570; In re Lance, 106 N.Y. Supp. 211, 216, 55 Misc. Rep. 13; Code of 1930, Secs. 579, 1311; 11 Cyc. 652-654.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
Under authorities cited by the appellant in his brief, I am of the opinion that the circuit judge had no authority under Section 2559, Code of 1942, to fix the date for the execution of the death sentence in vacation, and that this appeal should be reversed and another date for the execution of the death sentence be fixed by the circuit court of Harrison County at the next regular term thereof, in accordance with Section 2559, Code of 1942, and the opinion of this court in Simmons v. State, 196 Miss. 102, 16 So.2d 617.
What has heretofore happened in this case is set forth in Simmons v. State, 196 Miss. 102, 16 So.2d 617.
Upon the remand to the circuit court for the fixing of a day for the execution of the sentence under Section 1311, Code 1930, Section 2559, Code 1942, the district attorney filed a petition returnable in vacation, praying that the judge of the circuit court in vacation fix a day. The petition was sustained and in vacation the judge made the order prayed for, and from that action the convict has appealed.
There is no authority in the circuit judge in vacation to fix a day for the execution of a sentence. Throughout the cited section the language is that what is to be done under it is to be done by the court, and no statute is found which authorizes any such order in vacation. Compare White v. State, 185 Miss. 307; 188 So. 8.
Reversed and remanded.