Hawie v. State

83 So. 158, 121 Miss. 197

• Court: Mississippi Supreme Court
• Decided: October 15, 1919
• Docket: No. 20880
• Status: Published

Opinions

Stevens, J.,

delivered the opinion of the court.

Appellant was indicted by the circuit court of Rankin county for the murder of Annie Bell Seaney, and at the January, 1919, term was ■ tried, convicted, and sentenced to death. After the adjournment of the court, and in June, 1919, appellant filed an application with the trial judge for a writ of error coram nobis, based on certain alleged errors of fact in the trial of said cause. The petition is lengthy, and contains many averments, which, for the purposes of this opinion, need not here be set forth. The main errors of fact relied upon are the averments that appellant was insane al the time he was placed upon trial and convicted, and still is insane, and because of his mental incapacity was unable to advise with counsel or make his defense; that appellant was financially unable to employ counsel, and on that account the court appointed two attorneys to represent him, but that these attorneys were not appointed until the day of the trial, and had no knowledge of appellant’s insanity, and no means of knowing that petitioner was unable to conduct his own defense; that the attorneys appointed by the court had only a short conference with petitioner before the petitioner was-placed upon trial, and because of petitioner’s insanity he was incapable of informing said attorneys of his defense of insanity or of suggesting or advising with the said attorneys on any material matter pertaining to his defense; that the relatives or family of petitioner were not present at the trial, and knew nothing of the action of the court in appointing attorneys to represent defendant, and did not know who the said attorneys were, until after the said trial and conviction, and for that reason were unable to communicate with or advise said attorneys or the court of said insanity. It is further averred that petitioner was insane at the time of the homicide. It is alleged that the attorneys who now represent petitioner are in possession of facts and circumstances which they have learned since the trial, and of which the court had no knowledge at the time of petitioner’s trial, and are noAv prepared to shoAv that at the time of the trial petitioner was insane, and to furnish the court with the facts pertaining to this insanity, facts which, if knoAvn, Avould have prevented petitioner’s trial and the judgment that has been pronounced against him.

The petition had lengthy averments to the effect that public sentiment and feeling was so aroused against petitioner and such prejudice existed against petitioner that he Avas denied that fair and impartial trial contemplated by ■ the Constitution. It is further averred that petitioner was placed upon trial and convicted on the 24th day of January, 1919, and that the court finally adjourned on the 25th day of January, 1919, in ignorance of the facts set forth in said petition. The prayer of the petition is that the petition should he heard at the next regular term of the court, and upon hearing the judgment of conviction heretofore entered be revoked and annulled and a new trial awarded, or such further disposition made of petitioner as- may conform to law. The petition has attached thereto the affidavit of L. M. Burch, as attorney for petitioner, that the facts set forth in the petition are true and correct to his best information, knowledge, and belief. To the petition as presented the following demurrer was interposed :

“Comes the state by W. C. Eastland, district attorney, and demurs to the defendant’s petition for a writ of error coram nobis, for the following reasons, to wit:

“(1) Said petition affirmatively shows that each and every ground cited therein for the writ of error coram nobis existed at the time of the trial and conviction of the said defendant.

“(2) Other grounds to be shown on the hearing.

W. C. Eastland, District Attorney.”

This demurrer was by the court-sustained, and from this action of the court appellant appeals.

By elementary rules of pleading the demurrer in this case admits all facts well stated or pleaded in the petition. In Ency. of Pleading & Practice, vol. 5, p. 36, in the chapter on Coram Nobis, it is stated:

“The fact alleged as error may be admitted by demurrer or plea of nullo est erratum, which amounts to the same thing, or by motion to dismiss. ... No plea is necessary unless some error in matter of fact has been alleged upon which the defendant can make up an issue of fact if he is disposed so to do. . . -. Upon the issue of alleged error a trial is had.”

The petition in this ease clearly avers that George Howie was insane at the time he was placed upon trial, and at the time he was actually tried and convicted.- This the demurrer admits. Oúr consideration of the defendant’s rights is, therefore, based upon the assumed fact that he was insane at- the time he was tried, and his life forfeited by the final judgment of the Rankin county circuit court. The sole question presented is one of law. Does the petition state a case for relief?

There can be little controversy about the status of an insane person charged with crime. By section 1538, Code of 1906 (section 1300, Hemingway’s Code), it is made the duty of a conservator of the peace to hold a prisoner who appears to have been insane when he committed the offense, and is still insane at the time of the hearing, and to report the case to the chancellor or clerk of the chancery court for the proper inquiry. By section 1539, Code of 1906 (section 1301, Hemingway’s Code), it is made the duty of the grand jury who fails to return an indictment because of insanity to certify the fact to the circuit court, and thereupon the circuit court shall give like notice to the chancellor or clerk of the chancery court. By section 1540, Code of 1906 (section 1302, Hemingway’s Code), provision is made for those cases in which the accused is acquitted on the ground of insanity. But we have no statute which lays down the procedure in case where it is made known to the court that the defendant is insane at the time he is placed upon trial for a felony. But the common law on the subject is clear, and must prevail. Blackstone observes:

“If a man in his sound memory commits a capital offense, and, before arraignment for it, he becomes mad, he ought not to be arraigned for it, because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defense? If after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced, and if, after judgment, he becomes of nonsane memory, execution shall be stayed; for, peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might iiave. alleged something in stay of. judgment or execution. Indeed, in the bloody reign of Henry VIII, a statute was made which enacted that if a person, being compos mentis, should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory. But this savage and inhuman law was repealed by the Statute 1 & 2 Ph. & M. c. 10. For, as is observed by Sir Edward Coke, ‘The execution of an offender is, for example, ut pcena ad paucos, metus acl omnes perveniat; but so it is not when a madman is executed, but should fibe a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others. ’ But if there be any doubt whether the party be compos or not, this shall be tried by a jury.” Wendell’s Blackstone’s Commentaries, vol. 4, pp. 24, and 25.

A leading case is Freeman v. People, 4 Denio (N. Y.), 9, 47 Am. Dec. 216, in which the Supreme Court of New York quoted with approval .the observations of Sir Wtlliam Blackstone and Sir Edward Coke, and observed further:

“The true reason why an insane person should not be tried is that he is disabled by an act of God to make a just defense if he have one. As' is said in 4 Harg. Stat. Tr. 205, ‘There may be circumstances lying in his private knowledge, which would prove his innocency, of which he can have no advantage, because not known to the persons who shall take upon them his defense.’ The most distinguished writers on criminal jurisprudence concur in these humane views, and all agree that no person, in a state of insanity, should ever be put upon his trial for an alleged crime, or be made to suffer the judgment of the law. A madman cannot make a rational defense, and as to punishment, furto sus solo furore punitur. 1 Hale’s P. C. 34, 35; 4 Bl. Com. 395, 396; 1 Chit. Cr. L. Ed. 1841, p. 761; 1 Buss on Crimes, Ed. 1845, p. 14; Shelf, on Lunacy, '467, 468; Stock on Non. Comp. 35, 36.”

And, after discussing what disposition the court should make of the defendant Avhose sanity is brought into question at the time of trial, further stated iu the opinion:

“The course at common law was much the same. In Frith’s Case, 22 How. St. Tr. 307, 318, which preceded the act of 39 and 40 George III, to AAdiich reference has been made, the prisoner was arraigned for high treason, and a jury sworn to inquire Avhether he AAras of sound mind and understanding or not. Lord Kenyon, Chief Justice of the Court of King’s Bench, presided at the trial, assisted by one of the judges of the court of common pleas and one of the barons of the court of exchequer. It was observed by the court to the jury that the inquiry was not whether the prisoner was insane when the alleged crime was committed, nor was it necessary to inquire at all Avhat effect his present state of mind might have [been] when that question came to be discussed; but the humanity of the law of England had prescribed that no man should be called upon to make his defense, at a time when hi.s mind was in such a situation that he appeared incapable of doing so; that however guilty he might be, the trial must be postponed to a time Avhen, by collecting together his intellects, and having them entire, he should be able so to model his defense, if he had one, as to ward off the punishment of the law;' and it was for the jury to determine whether the prisoner was then in that state of mind. Shelf. 468.”

In Jones v. State, 13 Ala. 153, the court by Chilton, J., observed:

“The evidence strongly indicated, perhaps was conclusive, of the prisoner’s insanity at the time of the trial. Under such circumstances, it was not proper that he should have been put upon his trial. By the humanity of the common law, a party who was insane at the time of the trial could not be arraigned. If he became insane after his conviction, he could not be executed while he remained thus demented. See 1 Hawk. P. C. 3, section 3; 1 Hale, 34, 35; 1 Buss.' 13; 4 Bl. Com. 25.”

To the same effect is Baughn v. State, 100 Ga. 554, 28 S. E. 68, 38 L. r. A. 577, and other cases referred to in the attached case note.

Mr. Bishop says: “If an indicted person is not sane, the court cannot go on with the case; or if he becomes insane after the trial commences, he can neither be sentenced, or, if sentenced, puished, while his insanity continues.” Bishop’s New Criminal Law, vol. 1, par. 396.

Prom these authorities it unquestionably follows that if the defendant in this case was insane, the court was in error in placing him upon trial and in pronouncing the judgment of conviction. The fact of the prisoner’s insanity was not known either by court or counsel. There was an error of fact which led to an unlawful trial. It must be remembered that we are not here dealing with any alleged errors in reference to the indictment, arraignment, or the actual conduct of the trial itself. The rulings of the trial court on the merits of the case are not presented. We are confronted with an error of fact which was unknown to the court and one which, if the court had known, would have prevented any trial whatever. What then is the prisoner’s remedy? The error is one that could not have been availed of during the term of court at which the defendant was convicted. There is, therefore, no remedy by appeal. Does the fact that the term of court has elapsed or adjourned preclude any further inquiry or deny any relief? No statute of our state affords relief in the case made by the petitioner. The remedy, if there be one, must be found in the common law. The petition prays'for a writ coram nobis. The office and functions of a writ in the nature of. the writ coram nobis have been clearly and well stated in previous decisions of our court. It is not, therefore, the purpose of this opinion to trace the history or justify the use of such writ in- our commonwealth. It is sufficient to say that a writ in the nature of the writ coram nobis has always been recognized in our state as a common-law remedy in appropriate cases. Keller v. Scott, 2 Smedes & M. 81; Fellows v. Griffin, 9 Smedes & M. 362; Land v. Williams, 12 Smedes & M. 362, 51 Am. Dec. 117; James v. Williams, 44 Miss. 47; Fugate v. State, 85 Miss. 94, 37 So. 554, 10.7 Am. St. Rep. 268, 3 Ann. Cas. 326; Corby v Buddendorff, 98 Miss. 98, 54 So. 84; Miss. S Tenn. Railway Co. v. Wynne, 42 Miss. 315. Under these authorities it is clear that the writ is an available common-law remedy in both civil and criminal cases. It only remains to inquire whether the remedy is available to appellant in the case at bar. On the admitted facts there can be no doubt on this point. Indeed insanity at the time of trial or judgment presents a case which the writers have used as illustrating a proper case for the writ coram nobis. Mr. Freeman says:

“If, however, the proceedings are based upon facts presumed by the court to exist, as when one of the parties is insane, or is an infant, or a feme covert, or has died before verdict, and the court supposing such party to be alive and competent to appear as a litigant, renders judgment, it may be set aside by a writ of coram nobis.” Freeman on Judgments (2 Ed.), par. 94.

The functions of the writ were ably discussed by Chief Justice "Whiteiblb in Fugate v. State, supra, and certain limitations upon the use of the writ in our state indicated, but the court was explicit in stating: “It is perfectly clear, we think, on the authorities, that the writ is applicable to criminal as well as civil proceedings. ” _

Its application to criminal cases is likewise ably discussed in Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29. Justification for the writ is properly founded upon the inherent power of the court over its judgments and proceedings. The opinion of the Indiana court on page 328 of 85 Ind. (44 Am. Rep. 29), contains the following observations that are apposite:

“That courts possess inherent powers not derived from any statute is undeniably true. Among these powers are the right to correct their records so as to make them speak the truth, to pass upon the constitutionality of statutes, to prevent the abuse of their authority or process, and to enforce obedience to their mandates. If it were granted that courts possess only such rights and powers as are conferred by statute, they would be mere creatures of the legislature, and not independent departments of the government. They are not mere creatures of the legislature, but are coordinate branches of the government, and in their sphere not subject to legislative control. Deutschman v. Town of Charlestown, 40 Ind. 449; Cooley, Const. Lim. 114, 116; 2 Story, Const. 377.”

In Cyc. vol. 23, p. 885, is is said: “But the writ may issue where there is a vital jurisdictional defect not apparent on the face of the record, or on account of the death of a party before judgment, or the infancy, insanity, or coverture of defendant, such disability not having been brought to the notice of the court before judgment, or where a default has been irregularly entered against a party not legally in default, or has been taken against him by fraud, accident, or mistake, without fault on his part.”

The case of Adler v. State, 35 Ark. 517, 37 Am. Rep. 48, is directly in point, especially upon the proposition.of the insanity of the accused at the time of the trial, paragraph 1 of the headnotes reading:

“A circuit court judge has power, after the expiration of a term, to issue the writ of error coram nobis to reverse a judgment of conviction in.a criminal case, where it appears that the defendant was insane at the time of the trial, and the fact was not made known at the trial; and upon the assignment of such error in fact, if disputed by the state, to cause a jury to be impaneled in term to. try such issue; and the venue for the trial of such issue may be changed to another county, but the change carries the whole case.”

We refer also to Ex parte Gray, 77 Mo. 160; State v. Patton, 10 La. Ann. 299, 63 Am. Dec. 594; State v. Calhoun, 50 Kan. 523, 32 Pac. 38, 18 L. R. A. 838, 34 Am. St. Rep. 141; 2 R. C. L. 308, and authorities cited in footnotes.

It will be observed in the present case that appellant’s mental condition was in no way brought into question during the progress of his trial, and especially was there no' plea of insanity interposed.

There is a decided difference between insanity at the time of the commission of the crime and insanity at the' time of trial. Prom the admitted facts and the authorities referred to, the trial court was in error in sustaining the demurrer to appellant’s petition. In the language of Sir Edward Coke, the execution of a madman would be a “ miserable spectacle, both against law and of extreme inhumanity and cruelty, and can be no example to others.”

The judgment of the learned circuit court will be reversed, the demurrer to the petition in this case overruled, and the cause remanded for further and appropriate proceedings.

Reversed and remanded.