Opinion
No. 37966.
January 7, 1952.
1. Appeal — stay of mandate, motion for.
After a felony conviction has been affirmed, and a suggestion of error overruled, and defendant's appeal to the United States Supreme Court has been dismissed and the mandate from that Court has been received and filed, a petition by the convict for a stay of mandate in order that the Court might consider, for a new trial, affidavits of the State's witnesses that in the trial they had erroneously identified the convict as one of the guilty parties, is unknown to our procedure and will be denied. Sec. 1190 Code 1942.
2. Criminal procedure — fixing time for commencement of sentence after affirmance.
The commencement of the sentence of imprisonment of a convict on bail during his appeals to the Supreme Courts of the State and of the United States is fixed as of the day when he is taken into custody for transportation to the penitentiary but he is to have credit for the time he was confined in jail pending his appeals. Sec. 1978 Code 1942.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Rankin County; DEES STRIBLING, Judge.
G.L. Martin, for petition.
It is respectfully submitted that since jurisdiction is still in this Court that this affidavit from the only witnesses who testified as to the actual alleged robbery shows that these witnesses now feel they were in error in their identification of E.J. Brooks, and that this Court has power and authority to reverse and remand for new trial. By looking at the record, and as we argued on the appeal, Mr. Peters and Mr. Bray could not, under the situation make any positive identification of Brooks; it was night; the robbers were masked; Peters and Bray had seen these three Sunday morning before there was any so-called identification made in the presence of Sheriff Mashburn; that this so-called identification was simply opinion evidence, and as we undertook to show in our briefs, which is supported by the authorities we cited, opinion evidence is always circumstantial evidence. We think the Court will see now that Peters and Bray are mistaken; they say so. It is to their credit, their great credit, to now speak as they have spoken.
It is submitted that this Court has held in White v. State, 190 Miss. 589, 195 So. 479, that it even has power to recall its mandate. It is submitted it has power to hold its mandate or to make any order while jurisdiction is still vested in this Court to effectuate justice; that if the mandate must go down, then this Court has power to supersede the judgment and sentence for a reasonable time. Petitioner having placed this matter in the hands of the Parole Board has been active for about one month or nearly so in presenting the matter, the board each time desiring further evidence.
Since this affidavit has come from Peters and Bray, it is submitted that petitioner has some ground for the writ of error coram nobis, but the Court knows how strict are the requirements and it will take some little time to investigate and determine that; too, he desires the Parole Board to make a final finding one way or the other.
I am of the opinion that since the mandate of U.S. Supreme Court was not filed with the Clerk of this Court until December 11, 1951, (I think that correct) that under Sec. 1990 Code 1942, the Clerk has twenty days after that day within which to hold the mandate, for jurisdiction was not reinvested in this Court until the day of filing of the mandate.
On May 14, 1951, this Court, Miss., 52 So.2d 616, affirmed the conviction of E.J. Brooks and his sentence to serve a term of four years in the state penitentiary for the crime of robbery with firearms. In due time he filed a suggestion of error which was overruled on July 9, 1951. Thereupon, an appeal was taken to the Supreme Court of the United States, during the pendency of which the appellant was allowed bail. That Court dismissed the appeal, 72 S.Ct. 114, 342 U.S. 863, 96 L.Ed. ___, on November 5, 1951. Thereafter, on December 11, 1951, the mandate from the Supreme Court of the United States was received and filed by the Clerk of the Court here. On December 17, 1951, the said Brooks filed with the Clerk of this Court what is styled as a "Petition for Stay of Mandate" which is wholly unknown to the procedure in this Court after the overruling of a suggestion of error in a criminal case, or after receipt by this Court of the mandate from the Supreme Court of the United States when that Court has declined to disturb the final judgment of this Court.
(Hn 1) On December 18, 1951, an "Amended Petition for Stay of Mandate" was filed in this Court, wherein we are asked to consider a certain ex parte affidavit made by two witnesses who identified Brooks in their testimony at the trial as one of the participants in the robbery, and in which amended petition we are now asked again to reverse the case and give the petitioner a new trial — a procedure wholly unauthorized in any criminal case in this Court after the same has been affirmed and a suggestion of error has been overruled. This is true without regard to what other remedy, if any, the petitioner may be entitled to for relief.
Section 1990, Code of 1942, provides, among other things, that "Every final judgment or decree rendered in any cause by the Supreme Court shall be certified by the clerk thereof to the clerk of the court from which the cause was brought, or to which it is remanded, within twenty days after the rendition of the judgment, * * *". Therefore the motion or "Petition for Stay of Mandate" and the "Amended Petition for Stay of Mandate" are hereby overruled; (Hn 2) and it appearing that the appellant obtained bail pending his appeals, and is now at large on bail, it becomes the duty of this Court to "fix the time for the commencement of his imprisonment, under the judgment of affirmance, so as to cause him to suffer the full time of imprisonment fixed by the judgment of the court below.", as provided by Section 1978, Code of 1942, the said Brooks to be credited thereon with such time as he may have been confined in prison pending his appeal to this Court and prior to the perfection of his appeal to the Supreme Court of the United States after the affirmance of his conviction by us on May 14, 1951. To that end and subject to the above mentioned qualifications, the time for the commencement of his imprisonment, under the judgment of affirmance, is hereby fixed as of the day when he shall be taken into custody for transportation to the state penitentiary. It is so ordered, and the motion or petition to further withhold the mandate of this Court is hereby overruled, as an unauthorized and unknown method of obtaining relief in the premises.