Holt v. State

ON WRIT OF ERROR CORAM NOBIS.

Calhoon, J.,

delivered the opinion of the court on the appeal from the denial of the writ of error coram nobis.

Holt was convicted of murder and the death penalty had been pronounced. After the court had adjourned he presented to the circuit judge, in vacation, his petition for a writ of error coram nobis, asking that the verdict and judgment be vacated, because:

1. One of the jurors was not a citizen nor qualified elector of the county of the trial.

2. “Because it was communicated to the jury which tried your petitioner, while said trial was in progress, either by the officers in charge of said jury, or some outsider, that your petitioner had killed two men and shot another, before the homicide of Jesse Ridings, for which he was then being tried, which statement was untrue, but which was to his prejudice and deprived him of a fair trial. ’ ’

3. Because a state witness had stated to divers persons, before the trial, that he was not present at the killing and knew nothing about it, and, but for his testimony there would have been no conviction.

The petitioner avers that he used due care and diligence and did not know of any of these things until after the court of his trial had adjourned, and prays supersedeas of his execution. The judge denied the writ and Holt appeals. The petition is supported by no affidavit except that of the petitioner himself.

We decline now to decide whether such a writ, if allowable *635 at all, may be reviewed here by appeal from the action of a circuit judge in vacation refusing it. Neither is it necessary to decide whether, if the writ may be invoked in criminal cases, it may be invoked in any other instance than where the facts produced show that the judgment, because of the facts pro duced, was a nullity as in case of its rendition against an insane person, or trial in the absence of the accused without arrest or process, etc. Certain it is that the action of the judge below, on this record, was correct in any view of the law. No court would ever grant a new trial on the showing made here. The petition is too vague. It does not put the state on notice of anything which it could prepare to combat. It is simply an invitation to make war on a windmill.

Neither the witnesses nor their affidavits are produced. The witnesses are not even named. Affirmed.

ON THE MERITS.

Terral, J.,

delivered the opinion of the court on the merits. W. P. Holt, the appellant, was convicted in the circuit court of Itawamba county of the murder of Jesse Ridings, and was sentenced to be hanged. On the trial of the case there was evidence in behalf of the state tending to show that Holt had armed himself for a deadly encounter, and was the aggressor therein. On the part of the defendant it was shown that Ridings, at the moment of the killing, attempted to draw a pistol, and, as an interpretation of that attempt, it was shown that Ridings, previous to the killing, made threats against the life of Holt; that a specific threat of Ridings, the day previous to the killing, was that he would kill Holt as quick as he would a dog; and to countervail this evidence of the defendant, the state, over the objection of the defendant, introduced William Atkins, who testified that whatever of threats was made by Ridings on the day preceding the killing was in consequence of an unfair division of lumber made of timber brought by Ridings to Holt’s mill, and which Holt was to saw on equal shares, *636 and that the share of the lumber given by Holt to Ridings was merely culls, of which not more than one-tenth or one-tifteenth part was good lumber, and the appellant complains of this evidence as impertinent and hurtful.

We are of the opinion that the complaint is well founded. It is a principle of common law governing the trial of causes that the facts given in evidence must be pertinent to the issue, and that all facts not so pertinent should be rigidly excluded.

It was competent for the state to show any conduct or words of the defendant, made or said within a reasonable time before the killing, which tended to show a purpose on the part of the defendant to take the life of the deceased, and so it was competent for the defendant to show any previous threat to take his life when coupled with some overt act made by the deceased at the time of the encounter indicating a purpose to kill the defendant; but it is not competent for the state, in addition to evidence of threat or of preparation, to also show that the defendant is guilty of other crimes, or holds sentiments which should not be tolerated or that-he is dishonest.

In this case an offer to prove that the defendant was a thief and had been guilty of larceny, would, we doubt not, have been instantly rejected, and yet the difference between proving larceny and an act of distinct dishonesty is a difference more in name than in reality, for both are a plain violation of the divine precept which says “thou shalt not steal.”

William Atkins, a relation of the deceased, over the objection of the defendant, testified that deceased furnished logs at the mill of Holt which it was agreed should be sawed into lumber and divided equally between deceased and Holt, and that the portion of the lumber turned over to Ridings by Holt was mere culls, the good lumber of which was not more than fifteen per centum of the output, thus clearly placing before the jury a case of palpable fraud and dishonesty on the part of Holt. It may be that Holt, if he had anticipated such charge, could have rebutted it; but, whether he could do so or not, it was not rele *637 vant to the issue before the jury. The circumstances in evidence were sufficiently afflicting to distract the attention of the defendant, and this evidence of Atkins placed upon him a burden which the law does not call upon him to assume.

This rule, among others of the common law, adopted to secure a fair and impartial trial of causes, may not be lightly disregarded, especially when the life of a citizen trembles in the balance. Wharton’s Crim. Ev., secs. 30, 757; Spivey v. State, 58 Miss., 858 ; Brame & Alexander’s Digest, title, Evidence, part 3; 1 Greenleaf on Evidence (9th ed.), sec. 49, et seq.

The judgment of the circuit coiort is reversed and annulled, and a new trial is a/warded.