Opinion
No. 35721.
December 11, 1944. Suggestion of Error Overruled January 8, 1945.
1. CONSTITUTIONAL LAW.
Accused could not contend that execution should not be ordered because he was denied due process of law in that he was put to trial when incapable of adequately aiding in his defense and confession used against him was procured by force and intimidation, where accused at time of trial had full knowledge of the matters complained of and made no effort then to present them to court (Code 1942, sec. 2559).
2. CONSTITUTIONAL LAW.
"Due process of law" guarantees to accused only one full opportunity to be heard.
3. CRIMINAL LAW.
The "legal reason against execution of sentence" which convict may show under statute providing for fixing new date for execution of death sentence must be based upon happenings which have occurred since original trial (Code 1942, sec. 2559).
ON MOTION. (In Banc. April 23, 1945.) [21 So.2d 822. No. 35721.]CRIMINAL LAW.
Where appeal to United States Supreme Court from state Supreme Court's order fixing date for execution of sentence was pending on such date, new date therefor would be fixed by state Supreme Court on remand of case to it following dismissal of the appeal.
APPEAL from the circuit court of Harrison county, HON. L.C. CORBAN, Judge.
Bidwell Adam, of Gulfport, for appellant.
Section 1311 of the Code of 1930 (Section 2559 of the Code of 1942) gave Eddie Simmons the right to show any legal reason, if he could, why he should not be re-sentenced to die, and this last opportunity afforded him under the cold and stern letter of the law was denied to him. We earnestly insist that this case should be reversed and that the appellant, Eddie Simmons, be given an opportunity to present the facts as set forth in his answer to the petition for the writ of habeas corpus, or, in the alternative, that this court will award him a new trial.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The appellant was tried and convicted in the circuit court of Harrison County, Mississippi, for the crime of rape and sentenced to death, from which judgment he appealed to the Supreme Court of the State of Mississippi, wherein judgment was affirmed (15 So.2d 287). Due to passing of execution date other questions, not affecting the merits of this case, appear in 16 So.2d 617 and 17 So.2d 799. Suffice to say that this case was remanded to the circuit court of Harrison County, Mississippi, for fixing the date of the execution of the sentence as provided in Section 2559, Code of 1942. The record shows that the district attorney filed a petition in accordance with Section 2559, Code of 1942, returnable to the regular term of the circuit court of Harrison County, Mississippi, at the June term, 1944, for fixing date for execution of sentence in accordance with the judgment of the circuit court of Harrison County, Mississippi, and the Supreme Court of the State of Mississippi; that the appellant, through his attorney, filed an answer to the petition for a writ of habeas corpus, contending that the judgment of the circuit court of Harrison County, Mississippi, should be set aside for the reason that the appellant was not given a fair and impartial trial as provided by the Constitution of the State of Mississippi and the Constitution of the United States, to which answer the district attorney filed a demurrer. Later, the demurrer was withdrawn and instead motion to strike answer of defendant was filed, which motion to strike was sustained by the court. Whereupon, the court issued the order prayed for and from this order the appellant appeals.
Appellant's main contention argued in his brief is that the appellant was denied due process of law on the ground that at the time of the trial the appellant was physically and mentally incapable of advising with his counsel and cooperating with him in the trial and conduct of his case by reason and on account of the serious wound inflicted upon him when the sheriff shot him through the leg. The record shows and counsel admits that the appellant was represented by an attorney in the trial of this case and he also admits that no motion for a continuance was asked.
Where a party convicted of crime prosecutes an appeal to the Supreme Court on a record which shows a valid judgment, and such judgment is affirmed on appeal, such party cannot thereafter attack the validity of the judgment appealed from on habeas corpus.
Ex parte Golding, 148 Miss. 233, 114 So. 385; Lewis v. State, 155 Miss. 810, 125 So. 419.
It has long been a settled principle of common law that a judgment of a court of superior jurisdiction is conclusive by way of res adjudicata of all those issues involved in the record of the original trial, and which, being so involved, might have been therein litigated.
Hardy v. O'Pry, 102 Miss. 197, 214, 59 So. 73; Mitchell v. State, 179 Miss. 814, 176 So. 743.
Three appeals have heretofore been granted appellant, and this is his fourth. 15 So.2d 287; 16 So.2d 617, and 17 So.2d 798, 799. The present episode is that when as a result of his next previous appeal he was brought before the circuit court in term time for the fixing of another date for the execution, he presented, in a manner unobjectionable as to form, a statement of two assigned reasons why the execution should not be ordered, these grounds being directed towards the validity of the original trial and sentence. He alleges that (1) he was put to trial, when, on account of a wound previously suffered, he was physically and mentally disabled, and to such an extent as to make it impossible for him to adequately aid in his defense; and that (2) in the trial an alleged confession was used against him which had been procured by force and intimidation. His present statement is such, however, as to disclose that he had full knowledge at the time of trial of both of the matters of which he now complains, and there is no allegation that the officers of the court in charge of the prosecution took any measure, actually or constructively, directly or indirectly, to suppress or repress his presentation thereof on his original trial. His contention, now made, that in his trial he was denied due process cannot be maintained for the elemental reason that he was given full opportunity to be heard, and the guaranty of due process does not require more than one such opportunity. Every person must have his day in court; but this is singular, not plural.
Appellant urges, however, that whatever may be the general rule, the provision is express in Section 2559, Code 1942, which is the section which authorizes a new date to be fixed for the execution of a death sentence, to the effect that a convict when brought into court under the section may show any "legal reason against the execution of the sentence." This statute, as is the rule applicable to all procedural laws, must be construed so as to fit it harmoniously into the system of which it is a part; whence it follows that the reasons against the execution, in order to be legal reasons, must be based upon happenings which have occurred since, but not at or before, the original trial. See Lewis v. State, 155 Miss. 810, 125 So. 419. If this were not the rule, a convict who had succeeded in escaping and in remaining at large beyond the date fixed for his execution would have, on his capture, the right to an application for a new trial by invoking the provision to which appellant now points.
Appellant in his statement requested that as a part thereof the record of the original trial be considered. Acceding to that request, we have examined the transcript of the original trial, 15 So.2d 287, on the general docket of this Court, and it is interesting to note that appellant was indicted on December 8, 1942. On the same day an attorney was appointed to defend him, and he was brought to trial on December 29, 1942, giving ample time to the attorney to investigate the facts and the law, and nothing appearing to the contrary, we must assume that he did so. The record shows that no application for a continuance was made, and nowhere does it appear that the attention of the court was called to the fact, if it was a fact, that the defendant was under any incapacity, and no such was shown or alleged in the motion for a new trial.
But a still further interest is in connection with the present complaint about the confession. The confession was made to the witness Payne. On the cross-examination of the defendant, who testified in his own behalf on the issue of the competency of the confession, the following appeals on p. 95 of the transcript:
"Q. What you told Mr. Payne was the truth? A. Yes sir.
"Q. And you did commit this crime? A. Yes sir." Affirmed, and Friday, January 26, 1945, is fixed as the day for the execution of the sentence.
An appeal was taken to the Supreme Court of the United States from the order made herein on a former day, 20 So.2d 64, fixing the date for the execution of the sentence here imposed, but that court dismissed the appeal and remanded the case to this court. 323 U.S. ___, 65 S.Ct. 590. The date for the execution of the sentence having passed, Thursday, May 31st, 1945, will be again fixed therefor.
So ordered.