Appellant, a white man, was convicted of one of the most atrocious crimes ever committed in this state. For
the purpose of robbing an old negro of his savings, appellant entered the home of the negro, knocked him and his son into insensibility with a blackjack, and burned down their dwelling house upon them. From the conviction and sentence of death an appeal was taken to this court, which affirmed the judgment and sentence, as appears, with a fuller recital of the facts, in Mitchell v. State, 176 Miss. 873, 170 So. 534.
Upon the affirmance by this court, appellant applied to the Governor for relief, upon the plea that appellant was insane at the time of the commission of the offense, was insane at the time of the trial, and has ever since so remained. The Governor granted a reprieve, and put appellant under the examination of competent experts at the insane asylum who, after extended observations, pronounced appellant sane, and the Governor refused to further interfere with the sentence of the law.
Within a few days before the date fixed for the execution, appellant filed a petition for a writ of coram nobis, alleging therein as he had alleged before the Governor; and the circuit judge of the district wherein the conviction was had being absent from his district on account of illness, the petition was presented to the circuit judge of another district, who ordered a stay of the execution and directed the clerk to issue the writ of coram nobis for the sole purpose of determining at the next term of the circuit court the sanity of appellant.
The aforesaid order of the circuit judge which stayed the execution of the sentence embraced in the judgment was made and issued without notice to the state, that is to say, without notice to the Attorney General or to the district attorney. It is laid down in the authorities, as must be under fundamental principles, that a writ of error coram nobis cannot issue except on notice to the opposite party, Comstock v. Van Schoonhoven, 3 How. Prac. (N.Y.) 258, 261; Crawford v. Williams, 1 Swan (Tenn.) 341-343. It follows as a logical legal sequence that when an application under a petition of the nature
here under consideration is made in vacation, and such action is to be taken thereon as to strike from the judgment by that action a material portion thereof, so that it will be necessary for the stricken portion to be restored by a subsequent judgment in term time, there is involved something more than a mere supersedeas or injunction on which bond is required, wherefore a reasonable notice to the other party is necessary to the same extent that a notice is necessary before the court can finally hear the petition on its merits. The circuit judge, before whom the preliminary order of stay of execution was presented, was therefore without proper authority to order the stay in the absence of notice to the state of such application.
When the petition came on for hearing before the circuit court wherein the original judgment was rendered, the district attorney responded thereto by what he termed a motion to dismiss, but which in fact set up, among other things, a plea of res adjudicata, and the pleading was treated in substance as a plea or answer, both sides introducing evidence, both oral and documentary; including the transcript of the original trial; and at the conclusion the court denied the petition and fixed a date for the execution, and an appeal has again been brought to this court.
Since the rendition of the opinions of the court in Hawie v. State, 121 Miss. 197, 83 So. 158, 10 A.L.R. 205, and Id.,125 Miss. 589, 88 So. 167, although the result reached in both those decisions was correct, the discussions made a part of those opinions have induced a course of practice in cases of death sentences which, under the experiences of the last few years, has become intolerable, and has produced such mischief as to bring the courts and the law into a measure of disrespect, in the hearing of numerous applications for the stay of executions and in the too frequent granting thereof. It may be asserted with confidence that during the last several years in the majority of cases in this state of
convictions with the death penalty of persons with any means, or with relatives or friends who have means to employ additional counsel, the convict is asserted to be insane as soon as the hangman is seen to approach with his noose, and the more atrocious the crime, and the greater the ability of the convict to feign unusual symptoms, the more ready are some mental experts to attest a supposed insanity. See Zane, The Story of Law, pp. 346-350. We have reached the point where it becomes the solemn obligation of this court to close some of the doors to the field by which judgments of conviction with death sentences may be made footballs, to be tossed from court to court, and from one delay to another.
The writ of error coram nobis has come down to us from the days of long ago, even from those days when people still believed in witchcraft. It was devised, not by legislation, but by the judiciary, as a suitable method to meet some of the extreme exigencies of justice under a judicial system in many respects different from ours; but being found in a measure available for use amongst us, has been in some states, including ours, recognized as an existing common-law remedy, and this too by judicial decision and not by legislative enactment. The common law, however, both in its substantive and in its adjective features, is not now, never has been, and never will be, static or stagnant. It has been one of the proudest boasts of the common law that it has within itself the potency of steady improvement, and this by judicial action, so long as that action is in accord with existing fundamental legal principles. It is the duty of courts, as attested by numerous decisions in this court, and in all courts throughout the nation, not only to keep the common law and its processes of enforcement abreast, or nearly so, with the substantial innovations of time, with the higher moral and material attainments in the general progress of enlightened civilization, proceeding always, however, upon established fundamental legal principles, 12 C.J., pp. 178-180, section 5; Yazoo M.V. Railroad
Co. v. Scott, 108 Miss. 871, 67 So. 491, L.R.A. 1915E, 239, Ann. Cas. 1917E, 880; Gross v. State, 135 Miss. 624, 631, 100 So. 177; but also it is equally the duty of courts to see that the state of the law shall continually profit by the experiences and observations of the past and that, when such experiences have definitely disclosed a mischievous imperfection in previous precedents, the mischief shall be removed by recourse to another, and a fitter, legal principle. 7 R.C.L., page 1008, section 35; 15 C.J., page 957, note 19.
It has long been a settled principle of the 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. And especially is this true when as to a particular issue it was necessary for the court and jury to have decided that issue in order to warrant the verdict and judgment which were rendered.
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Appellant, a white man, was convicted of one of the most atrocious crimes ever committed in this state. For
the purpose of robbing an old negro of his savings, appellant entered the home of the negro, knocked him and his son into insensibility with a blackjack, and burned down their dwelling house upon them. From the conviction and sentence of death an appeal was taken to this court, which affirmed the judgment and sentence, as appears, with a fuller recital of the facts, in Mitchell v. State, 176 Miss. 873, 170 So. 534.
Upon the affirmance by this court, appellant applied to the Governor for relief, upon the plea that appellant was insane at the time of the commission of the offense, was insane at the time of the trial, and has ever since so remained. The Governor granted a reprieve, and put appellant under the examination of competent experts at the insane asylum who, after extended observations, pronounced appellant sane, and the Governor refused to further interfere with the sentence of the law.
Within a few days before the date fixed for the execution, appellant filed a petition for a writ of coram nobis, alleging therein as he had alleged before the Governor; and the circuit judge of the district wherein the conviction was had being absent from his district on account of illness, the petition was presented to the circuit judge of another district, who ordered a stay of the execution and directed the clerk to issue the writ of coram nobis for the sole purpose of determining at the next term of the circuit court the sanity of appellant.
The aforesaid order of the circuit judge which stayed the execution of the sentence embraced in the judgment was made and issued without notice to the state, that is to say, without notice to the Attorney General or to the district attorney. It is laid down in the authorities, as must be under fundamental principles, that a writ of error coram nobis cannot issue except on notice to the opposite party, Comstock v. Van Schoonhoven, 3 How. Prac. (N.Y.) 258, 261; Crawford v. Williams, 1 Swan (Tenn.) 341-343. It follows as a logical legal sequence that when an application under a petition of the nature
here under consideration is made in vacation, and such action is to be taken thereon as to strike from the judgment by that action a material portion thereof, so that it will be necessary for the stricken portion to be restored by a subsequent judgment in term time, there is involved something more than a mere supersedeas or injunction on which bond is required, wherefore a reasonable notice to the other party is necessary to the same extent that a notice is necessary before the court can finally hear the petition on its merits. The circuit judge, before whom the preliminary order of stay of execution was presented, was therefore without proper authority to order the stay in the absence of notice to the state of such application.
When the petition came on for hearing before the circuit court wherein the original judgment was rendered, the district attorney responded thereto by what he termed a motion to dismiss, but which in fact set up, among other things, a plea of res adjudicata, and the pleading was treated in substance as a plea or answer, both sides introducing evidence, both oral and documentary; including the transcript of the original trial; and at the conclusion the court denied the petition and fixed a date for the execution, and an appeal has again been brought to this court.
Since the rendition of the opinions of the court in Hawie v. State, 121 Miss. 197, 83 So. 158, 10 A.L.R. 205, and Id.,125 Miss. 589, 88 So. 167, although the result reached in both those decisions was correct, the discussions made a part of those opinions have induced a course of practice in cases of death sentences which, under the experiences of the last few years, has become intolerable, and has produced such mischief as to bring the courts and the law into a measure of disrespect, in the hearing of numerous applications for the stay of executions and in the too frequent granting thereof. It may be asserted with confidence that during the last several years in the majority of cases in this state of
convictions with the death penalty of persons with any means, or with relatives or friends who have means to employ additional counsel, the convict is asserted to be insane as soon as the hangman is seen to approach with his noose, and the more atrocious the crime, and the greater the ability of the convict to feign unusual symptoms, the more ready are some mental experts to attest a supposed insanity. See Zane, The Story of Law, pp. 346-350. We have reached the point where it becomes the solemn obligation of this court to close some of the doors to the field by which judgments of conviction with death sentences may be made footballs, to be tossed from court to court, and from one delay to another.
The writ of error coram nobis has come down to us from the days of long ago, even from those days when people still believed in witchcraft. It was devised, not by legislation, but by the judiciary, as a suitable method to meet some of the extreme exigencies of justice under a judicial system in many respects different from ours; but being found in a measure available for use amongst us, has been in some states, including ours, recognized as an existing common-law remedy, and this too by judicial decision and not by legislative enactment. The common law, however, both in its substantive and in its adjective features, is not now, never has been, and never will be, static or stagnant. It has been one of the proudest boasts of the common law that it has within itself the potency of steady improvement, and this by judicial action, so long as that action is in accord with existing fundamental legal principles. It is the duty of courts, as attested by numerous decisions in this court, and in all courts throughout the nation, not only to keep the common law and its processes of enforcement abreast, or nearly so, with the substantial innovations of time, with the higher moral and material attainments in the general progress of enlightened civilization, proceeding always, however, upon established fundamental legal principles, 12 C.J., pp. 178-180, section 5; Yazoo M.V. Railroad
Co. v. Scott, 108 Miss. 871, 67 So. 491, L.R.A. 1915E, 239, Ann. Cas. 1917E, 880; Gross v. State, 135 Miss. 624, 631, 100 So. 177; but also it is equally the duty of courts to see that the state of the law shall continually profit by the experiences and observations of the past and that, when such experiences have definitely disclosed a mischievous imperfection in previous precedents, the mischief shall be removed by recourse to another, and a fitter, legal principle. 7 R.C.L., page 1008, section 35; 15 C.J., page 957, note 19.
It has long been a settled principle of the 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. And especially is this true when as to a particular issue it was necessary for the court and jury to have decided that issue in order to warrant the verdict and judgment which were rendered. In order to warrant the rendition of a verdict and judgment for crime it is necessary that the judgment shall comprehend the issue that the accused, both at the time of the commission of the offense and at the time of trial, was of sufficient mental soundness to be held to criminal accountability and to be subject to a trial therefor, with the result that when a verdict of guilt and a judgment of condemnation have been returned and entered, that action is res adjudicata of both the issues mentioned.
To remove to the extent now deemed requisite the mischief which we have hereinabove mentioned, we take recourse to the better and fitter legal principle which we have outlined in the foregoing paragraph. We decline to follow further that line of cases found in some jurisdictions which hold, or apparently hold, that for the first time after conviction the plea of insanity may be raised, and thereby a new train of hearings and rehearings upon that issue may be put in motion, to end only when ingenuity
has been exhausted, or the money for defense is all spent. And we hereby overrule any and all of our previous cases to the extent that they, or any of them, are in conflict with what we are here laying down. It is only when the insanity has developed and become present since the trial that we leave the door open to suspend a judgment or sentence upon that issue — and we have no such alleged case here. We place the issue of insanity upon the same basis of fact as that found in Bennett v. State, 106 Miss. 103, 63 So. 339, and we expressly reaffirm what was said in that case. And we call attention to the two cases cited in that opinion, to-wit, Sanders v. State, 85 Ind. 318, 329, 44 Am. Rep. 29, and Fugate v. State, 85 Miss. 94, 37 So. 554, 107 Am.St.Rep. 268, 3 Ann. Cas. 326. In the Sanders Case it was directly held that the issue of insanity at the time of the commission of the crime as well as at the time of the trial cannot be made the subject of a petition for a writ of coram nobis, and the opinion in the Fugate Case quotes at page 102 of 85 Miss., 37 So. 554, with express approval, what was said on this subject in the Sanders Case. What we are doing in the present case is, therefore, simply to return to original principle, which at last is that of res adjudicata, as we have already set forth, and from which there should not have been any departure, as unfortunately did later happen, in the particular class of cases here under consideration.
We have not overlooked the argument that the original trial was no trial at all, and therefore was without due process of law, because, as has been suggested, the attorney for appellant in the trial was negligent, and by reason thereof failed to distinctly present in that trial the plea of insanity, and failed to prosecute that issue with proper vigor; and we note also the contention that appellant is not bound by what the attorney did or failed to do in that trial it being urged that an insane man can have no agent and therefore no attorney. It is true that an insane person can have no contractual agent, but it is equally true that a person non compos mentis may have
an agent appointed by law. Numerous examples may be given of this fact, one of which is that service of process on an insane defendant may be made upon the superintendent of the insane hospital where the defendant is confined. The law requires the court to appoint an attorney to defend in all capital cases, when otherwise the defendant would have no attorney; and the attorney so appointed is the agent of the defendant within the scope of the duties of the appointee whether the defendant be sane or insane; and an insane defendant is as much bound by his attorney's actions, when within the legitimate scope of his duties, as if the defendant were sane, and an attorney employed by the defendant or his relatives, and accepted by the court, occupies a position of no less importance. If all this were not true, no trial could be had, and no authoritative judgment could be pronounced, where a defendant claimed to be insane; and no person so claiming could ever be punished for crime until he became ready voluntarily to submit to punishment, which introduces the obvious proposition that none of them will ever volunteer to be hung.
The entire record discloses that there is no just ground to aver that the attorney was negligent, even if that were here material. He had been employed some ten days before the trial, and he had with him the presence and assistance of members of appellant's family. He had information of all the deliberate circumstances of the planning of this robbery and murder, the cautious details of its execution, and the well-reasoned scheme of the flight into another state, where appellant remained hidden under an assumed name for more than three years and until he was detected and returned for trial. All that the attorney had before him, or upon diligence could ascertain, was that the defendant was a cruel, crafty, and designing murderer, with full sensibility at all times of the nature and consequences of his act, and of his accountability to the law therefor. Rather than take the risk of a plea of insanity which could not be sustained, the attorney
did the best he could, and produced the evidence of the defendant that he had no recollection of the crime, and the testimony of relatives that appellant suffered from periods of forgetfulness, hoping thereby to avoid the extreme sentence of death; and that the jury rejected the bid for mercy was no fault of the attorney.
Affirmed, and Friday, December 17, 1937, is fixed as the day of execution.
Affirmed.