Opinion
No. 32395.
November 2, 1936.
1. HABEAS CORPUS.
Habeas corpus held not to lie to procure discharge of accused whose conviction was reversed because of admission of certain evidence, where there was no showing of any undue delay or denial of right to speedy trial and only ground urged as creating right to discharge was that evidence on subsequent trial would be insufficient to sustain conviction.
2. HABEAS CORPUS.
Habeas corpus would not lie to set aside judgment of reviewing court remanding case to circuit court for another trial.
APPEAL from the circuit court of Harrison county. HON.W.A. WHITE, Judge.
M.D. Brown, of Gulfport, for appellant.
There is no disputed fact in this matter and the only question involved herein is whether or not the confessions of appellant on which he was convicted were admissible on the habeas corpus trial, this being all of the evidence that was offered and all of the said confessions had been condemned by the Supreme Court and the case reversed and remanded to the lower court.
Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal.
4 C.J., sec. 3086, page 1105, and sec. 3088, page 1106, and sec. 3091, page 1110; 21 Cyc., page 346, note 73; 29 C.J. 64.
Lack of evidence of any essential element of the offense is ground for discharge on habeas corpus.
29 C.J. 64; People v. Moss, 187 N.Y. 410, 80 N.E. 383, 11 L.R.A. (N.S.) 582, 10 Ann. Cas. 309, 39 N.Y. Civ. Proc. 207; People v. City Prison, 56 Misc. 108, 106 N.Y.S. 139; 4 C.J., pages 1105, 1110, sec. 3086.
We contend that the doctrine of res judicata applies in this case as it usually and generally applies to any judgment.
The court will take judicial knowledge that there was a criminal term of court held in Harrison county after the Supreme Court reversed and remanded the case, and if there had been any other evidence, same could have been used to reindict appellant, if such indictment was necessary. The court is also familiar with the document that the law presumes that district attorneys and county attorneys will and do perform their official duties, and if there had been any other evidence other than was used on the trial of appellant on indictment that same would have been procured and introduced on habeas corpus trial, which was not done, leaving the presumption that there is no further evidence on which to hold the defendant, and we respectfully submit that he is entitled to be discharged.
Wm. H. Maynard, Assistant Attorney-General, for the state.
The sole question presented on this appeal is whether appellant should have been discharged on the habeas corpus hearing before the circuit judge. No request was made by appellant, in his habeas corpus petition, for bail and the lower court, accordingly, never passed on this proposition. Thus, the question as to whether appellant may or may not have been entitled to bail is not presented to this court. Likewise, no contention was made before the circuit judge that appellant was not to be granted a speedy trial. Appellant's petition was filed on June 23rd, after the mandate of the Supreme Court had been issued to the circuit court on June 12th. The circuit court had not had any term of circuit court after the mandate was sent to Harrison county, but the law set a term for July 13th. Appellant made no showing on his habeas corpus hearing that the state did not intend to try him at the July term of said court.
We recognize the rule that after indictment for a capital crime that the court on habeas corpus hearing for bail should hear evidence to determine, in accordance with section 29 of 1890 Mississippi Constitution, whether "the proof (of guilt) is evident or presumption great."
State v. Wray, 30 Miss. 681; Ex parte Beall, 39 Miss. 715; Street v. State, 43 Miss. 1.
As bail was not asked for in the petition for habeas corpus in our case, no evidence of guilt had to be introduced.
The Supreme Court of Mississippi, in the case of Street v. State, 43 Miss. 1, after deciding that evidence might be received after an indictment on a habeas corpus petition, asking for bail, stated that, even though such evidence could be received in considering the question of bail, that "it is not a question of guilt or innocence absolutely, for there is no power to discharge." In Ex Parte Oliver, 127 Miss. 208, 89 So. 915, the Supreme Court held that the habeas corpus court had the right to inquire into the guilt or innocence of the petitioner "provided no indictment had been returned by the grand jury."
State v. Morgan, 114 Miss. 634, 75 So. 441; Wall v. Quin, 148 Miss. 335, 114 So. 744.
We submit that where there is a good and valid indictment and neither bail nor a speedy trial has been denied, the court on a habeas corpus hearing cannot inquire into the guilt nor innocence of the defendant, nor discharge such defendant.
The granting of habeas corpus is not mandatory and judgment on habeas corpus will not be disturbed unless manifestly erroneous on law or fact.
Parker v. Tullos, 150 Miss. 680; Lee v. Hudson, 165 Miss. 756, 144 So. 240; Stokes v. Terrell, 154 Miss. 230, 122 So. 470; Cofer v. Henderson, 160 Miss. 53, 131 So. 421.
The appellant, Boudreaux, presented to the Honorable W.A. White, circuit judge of this state, a petititon for the issuance of a writ of habeas corpus, seeking a discharge from the custody of the sheriff of Harrison county. In substance, he alleged that he was indicted, tried, and convicted, at the January, 1936, term of that court for the crime of rape committed on a female child under twelve years of age, and sentenced to serve a life term in the penitentiary. He prosecuted an appeal to the Supreme Court of this state, where, on June 12, 1936, the cause was reversed and remanded. 168 So. 621. He alleged that the appellate court reversed the case because the court below had erred in admitting certain confessions, and without these confessions there would be no charge against him.
The writ was issued; the sheriff filed his answer, and, as an exhibit thereto, the mandate of this court, together with its opinion in the case.
The appellant did not seek to be enlarged upon bail pending the hearing of the cause in the circuit court of Harrison county.
On the hearing, the court had before it the evidence of the confessions offered on the first trial by the state, which also offered the entire transcript of the record in this court, which record disclosed that this court reversed and remanded the case to the circuit court of Harrison county from which it was appealed, and that there was an indictment against Boudreaux charging him with a capital offense, and that he was being held pending the disposition of the case by that court.
On June 24th, subsequent to the issuance of this mandate on June 12th, this petition for a writ of habeas corpus was filed. The term of court after the case was reversed by this court was due to be held on the first Monday of July, 1936. The habeas corpus court remanded Boudreaux to the custody of the sheriff and declined to release him.
The argument of the appellant seems to be that he is entitled to be discharged upon the habeas corpus without having to run the risk of another trial in the circuit of Harrison county, because this court has held that certain confessions offered against him on his first trial were incompetent, on account of coercion. The only authorities cited by him for this position are not in point. For example, he cites 29 C.J., p. 64, subdivision E, column 2. The authorities there cited, and the statement of that text, are based upon habeas corpus hearings had before the finding of indictments by grand juries.
When this case was reversed and remanded to the lower court, its jurisdiction was lodged in the circuit court of Harrison county. No other court could prejudge or predetermine for that court the guilt or innocence of the defendant, and that court is invested, by the Constitution and laws of this state, with all power necessary to properly dispose of the case. After the indictment of one accused of crime, on a trial on the merits of a case, all power is lodged in the court to which the grand jury has returned the indictment, and we know of no method for any other court to inquire into, or determine, what evidence will be offered upon another trial of the case in the court having jurisdiction.
There is no showing here of any undue delay or the denial of any right to a speedy trial, or any other right guaranteed to him by the Constitution and laws of this state.
An indictment having been returned by a grand jury in the case at bar, and the case now pending in the court of original jurisdiction by the judgment of the Supreme Court of the state, there is no power in a habeas corpus court to discharge the appellant simply because he conceives that the evidence on a subsequent trial will be insufficient or incompetent. Street v. State, 43 Miss. 1; State v. Morgan, 114 Miss. 634, 75 So. 441; Ex parte Oliver, 127 Miss. 208, 89 So. 915; Wall v. Quin, 148 Miss. 335, 114 So. 744; Ex parte Collier (Miss.), 12 So. 597, and Ex parte Jackson (Miss.), 63 So. 571. Neither can a habeas corpus court set aside the judgment of the appellate court remanding the case to the circuit court for another trial. In effect, the Supreme Court had determined that the relator was not entitled to be discharged.
The appellant, not being entitled to be discharged on a writ of habeas corpus, was properly held to await the action of the court having jurisdiction of his case.
Affirmed.