Bennett v. State

63 So. 339, 106 Miss. 103

Opinion

Smith, C. J.,

delivered the opinion of the court.

Appellant was convicted some time since of the crime of bigamy, appealed to this court, and the judgment was affirmed. Afterwards he filed a petition with the circuit judge in vacation for a writ of error cor am nobis, the prayer of which petition was ,by the circuit judge denied after hearing on full evidence.. The power of the judge to hear and determine this matter in vacation was not challenged.

The.ground of the petition is.the alleged existence of certain facts not made known to the court at the time of the trial, and which, had they been known, would have caused a different verdict and judgment to have been rendered, to wit: First, that-he had'been legally divorced from his first wife before his marriage to the second; second, that his second marriage was void, for the reason that it was contracted by him under duress. Neither of these defenses can be made the ground of the writ of error coram nobis, for the reason that they existed at the time of the trial. Fugate v. State, 85 Miss. 94, 37 So. 554, 107 Am. St. Rep. 268, 3 Ann. Cas. 326; Sanders v. State, 85 Ind. 329, 44 Am. Rep. 29; 5 Enc. P. & P. 29.

Appellant alleges that he was deterred from introducing evidence relative to his having contracted the second marriage nnder duress by fear of personal violence to himself, should he do so. This, allegation, conceding but not deciding, that such a fact would constitute a ground for the issuance of the writ prayed for, is not sustained by the evidence.

Affirmed.