Buckler v. State

Appellant was indicted, tried, and convicted of murder, and on appeal the judgment and sentence was affirmed, Buckler v. State (Miss.), 157 So. 353. After affirmance and before the day of execution, appellant, through his attorneys, presented his petition, to the trial judge, but during term time, for a writ of error coram nobis, alleging therein that he was insane at the time of the trial and has been insane at all times before and since. This petition was supported by the affidavits of the attorneys appointed by the court, who state in their affidavits that they did not know of the insanity at the time of the trial and were not negligent in that respect. The petition was supported also by the affidavits of two persons who had known appellant for a number of years. The trial judge declined to order the issuance of the writ and to stay the execution, and appellant's attorneys presented to a judge of this court an application for an appeal therefrom. The judge here being under the impression that the circuit court in term time had heard the application on its merits, after issue made up, granted an appeal with an order for the stay of the execution.

The chief contention made by the state is that a writ of coram nobis is not available after affirmance of the judgment and sentence by this court. Whatever division of authority there may be in other states, we must hold that the point is not well taken in this state. At an early day, in Planters' Bank v. Calvit, 3 Smedes M. 143, 41 Am. Dec. 616, 625, it was said: "Its judgment of affirmance is then no more than a ratification of what has already been correctly done. It is of no higher dignity than the judgment it affirms, because it is merely confirmatory of it." Since a judgment of affirmance is of no higher dignity than the judgment it affirms, it follows that a petition for a writ of coram nobis may be filed, allowed, and heard in the trial court as fully and with as much effect as had no appeal been taken. The writ, if allowed, is in all cases triable in the circuit court. Therefore the application must first be presented to the trial judge, unless he be absent from his district or be incapacitated by illness or the like.

It is said also in the argument that the writ in a case such as this is excluded from our procedure by what was said by the court in Powers v. State, 168 Miss. 541, 553, 151 So. 730, 733, where, in reaffirming the established rule that by coram nobis a new trial cannot be granted upon the ground of newly discovered evidence, the court said: "Within this rule fall all defenses existing at the time of the commission of the crime, as well as all verdicts against the evidence, and newly discovered evidence." This case did not design to overrule Hawie v. State,121 Miss. 197, 83 So. 158, 10 A.L.R. 205, for the insanity of an accused at the time of the trial goes further than a defense; it introduces the element that the accused is not fit to be tried, or, if he has remained insane, or has become insane since the trial, that he is not fit to be executed. Hawie v. State,125 Miss. 589, 596, 88 So. 167.

We have stated that the judge of this court who granted the appeal was under the impression that the circuit court had heard the application on its merits. While the record now before us shows that the petition was presented in term time and that an order was entered on the minutes which in its language reads somewhat as if a judgment upon a full hearing upon the merits, we think, in view of the fact that there was no demurrer to the petition, nor any joinder of issue therein by reply thereto, nothing as to any oral evidence taken, nothing as to a jury, and no written instructions to a jury, that the order when taken in connection with the entire record, or rather want of record, is that what the judge actually did was to refuse the writ, declined his fiat, or the equivalent thereof, for the making up of an issue under the petition, and did not in fact hear the matter with a jury, upon a contested issue of fact. That being the case, no appeal lies; for, as said in Carraway v. State,163 Miss. 639, 645, 141 So. 342, the refusal of a judge to issue his fiat for the writ of coram nobis is in the same class as the refusal of a fiat for an injunction or for any other remedial writ, and is no judgment at all.

It is urged in the argument that, unless an appeal be permitted, even though the action of the trial judge was no more than the refusal of his fiat upon the application for the remedial writ prayed for and was no final judgment, the petitioner would be without further remedy. If the order of the trial judge had been a final judgment, the question would arise whether under section 16, Code 1930, an appeal would lie, since the appeal would not be from a judgment of conviction, strictly speaking; but, since the order here was not a final judgment, it is a sufficient present reply to the argument made that the party has his further remedy by application to a judge of this court who is empowered to grant the remedial writ under section 742, Code 1930. That the writ of error coram nobis is a remedial writ is manifest from its intrinsic nature, and was so recognized in Carraway v. State, supra, and that the several judges of this court have the power to grant such a writ, although refused by the trial judge, and although not in aid of the appellate jurisdiction of the Supreme Court, it is clear as the power to grant an injunction or any other remedial writ, under the terms of said statutory section. The statute so empowering the several judges of this court appeared in the first general legislative act dealing with the subject after the adoption of our first Constitution, section 6 of the act approved June 22, 1822, appeared in the first Code of the state, Poindexter's Code of 1823, chapter 15, section 6, has been brought forward in every Code since that time, and has thus been recognized by every Constitution ordained for more than a hundred years. The power has been exercised by the several judges of this court time out of mind, and it has therefore passed beyond the stage of academic discussion, even if it had not been expressly affirmed, as it was in State Board v. Broom, 161 Miss. 679, 137 So. 789.

There being no valid appeal, the court is without jurisdiction or power to make any order other than for its dismissal.

Appeal dismissed.