Wetzel v. Wiggins

Gillespie, J.

William A. Wetzel, appellant, filed his petition for a writ of habeas corpus, wherein he alleged that he was being unlawfully confined in the Mississippi State Penitentiary by the Superintendent thereof, and the Sheriff of Sunflower County, Mississippi.

While appellant was serving a thirty-year term in the State Penitentiary for armed robbery, and on April 14, 1953, one of the convicts, Edgar G. (Sonny) McGraw, was killed. Appellant was convicted of the murder of McGraw and sentenced to death by electrocution. His conviction was affirmed by this Court. Wetzel v. State, 76 So. 2d 188; Wetzel v. State, 76 So. 2d 194; Wetzel v. State, 76 So. 2d 846. Thereafter, appellant perfected an appeal to the Supreme Court of the United States, and that Court denied the petition for writ of certiorari and dismissed the appeal on October 24,1955. The date originally set for the execution, October 30, 1953, had passed pending the disposition of the several appeals and this Court thereafter set February 9, 1956 for the execution of appellant.

This habeas corpus petition was filed in the Circuit Court of Sunflower County on January 24, 1956, which was sixteen days prior to the scheduled execution. The circuit judge denied the writ. No answer was filed. Petitioner perfected this appeal, and by waiver of the Attorney General, the case was advanced and heard at the earliest possible time. ~~

The petition alleges that appellant was sentenced under the provisions of the law prior to the enactment of House Bill 117, Laws of 1954, and House Bill 49, Laws Extraordinary Session of 1954, and that under the law in force at the time of the commission of the crime and at the time of sentence, appellant should have been confined in the county jail, or some county jail; that contrary to the law, appellant was removed to the maximum security cell block at the State penitentiary in Sunflower County, Mississippi, where he has since been confined in “condemned row” under the control, discipline, and regulations pertaining to the maximum security cell block in the State penitentiary, and that he was thereby restricted as to visits from friends and attorneys, conversations, communications, and otherwise; that there were other condemned men awaiting execution in “condemned row” and by reason of the ceaseless praying, conversations, and noises made by the others therein confined, the witnessing and hearing the preparation for the execution of other condemned men, and all the attendant reminders of the impending executions of such others, caused appellant great worry, mental anguish and apprehension; that nine men had been executed in the lethal gas chamber near his cell block, which was tantamount to appellant being executed nine times; that all of these circumstances to which appellant has been subjected was an increase in the severity of his punishment over what he would have suffered if he had been kept in some county jail pending execution; and that the law under which he was thus confined was ex post facto within the meaning of Section 10, Article 1 of the Constitution of the United States, and constituted a denial of the equal protection and due process of law guaranteed under the Fourteenth Amendment of the Constitution of the United States. For the purpose of considering this petition, we accept the facts as true, but not the conclusions, and we apply the facts alleged in the light of judicial and common knowledge.

An examination of the laws in effect at the time of the commission of the crime and at the time of conviction and sentence (Sections 2550-2557, Mississippi Code of 1942), and the laws enacted after petitioner’s conviction (Honse Bill 117, Laws of 1954, and Honse Bill 49, Laws Extraordinary Session 1954), reveals that Sections 2550 and 2551, Mississippi Code of 1942, providing for the inflicting of death in capital cases by electrocution, and the manner in which, and the person charged with the duty of such execution, were not repealed by the later laws. Section 4, House Bill 117, Laws of 1954, provided, however, that the one sentenced prior to the passage of the new laws would have a choice of receiving the death sentence by electrocution or by means of the gas chamber, and if the condemned person made no choice at least five days before the date of execution, then the condemned will be put to death under the provisions of the law in force prior to the passage of the act. In the oral argument, petitioner’s counsel conceded that death in the gas chamber is as humane as death by electrocution. But it will be observed that the new laws do not change the method of inflicting the death penalty save by choice of the condemned. Wherefore, as to the manner of inflicting the death penalty, the laws enacted in 1954 are not ex post facto. Indeed, the enactment of the 1954 laws providing for execution by lethal gas was prompted by humane motives, since it is generally conceded that death by means of lethal gas is more humane than death by electrocution. Section 4, House Bill 117, Laws of 1954, together with Section 2608, Mississippi Code of 1942, continue in operation the law providing for inflicting the death penalty by electrocution in cases where sentence was imposed prior to the passage of the new law when the condemned does not exercise a choice to receive the penalty under the new law.

The next question is whether appellant is unlawfully confined under an ex post facto law, and by reason therefor, entitled to escape the exaction of the death penalty.

Appellant largely relies on Medley’s Case, 10 SCT 384, 33 L. Ed. 835, 134 U.S. 160. We think the case is not point. Medley committed the crime prior to the passage of the new law hnt was sentenced under the new law after outright repeal of the old law. The Court held the new law violated the constitutional prohibition against ex post facto laws because the new law substituted solitary confinement in the penitentiary for confinement in the county jail, and substituted a different manner of fixing the day of execution. Neither of these considerations are present in the case before us. Moreover, the Court found itself in a quandary as to what to do with Medley after finding that the law under which he was sentenced was ex post facto because of the increase in the severity of that law over the old law, and the old law had been repealed. We do not understand that the final order did more than order Medley released from the penitentiary to be dealt with by the Colorado authorities as the laws of that State might provide, and the Court stated that it did not know whether the Colorado court had any power to deal further with Medley.

As we understand the prayer of the writ here sought by appellant, he is asking that he be released from custody and relieved of the death penalty. He says in his brief that he should be remanded to the superintendent of the State penitentiary to continue serving his thirty-year sentence which he was serving at the time of McG-raw’s murder and when he was arrested and convicted. We hold that the writ should not issue for several reasons.

First: Appellant cannot complain that he has been confined in the maximum security cell block at the State penitentiary because he was already serving a thirty-year sentence for armed robbery, and his counsel says in his brief that he had about twenty-seven years yet to serve. The Laws of Mississippi provide for the superintendent of the penitentiary to have custody and control of - convicts, and lie has full authority to make regulations for their safe keeping and discipline. The maximum security cell block is obviously the place where dangerous convicts are confined when the circumstances require it for the safety and security of the public and the convicts. Whether appellant had been convicted or acquitted in the case involving McGfraw’s killing, or if appellant had been given a life sentence, he could' have been confined in the same circumstances and conditions complained of in his petition.

Second: Up until the argument of this case, which was nine days before the scheduled execution of appellant, he had not exercised a choice under the provisions of Section 4, House Bill 117, Laws of 1954, and several days remained within which he could choose to receive the death penalty by lethal gas or by electrocution. Of course, if the choice is not made, appellant will be electrocuted by the person and in the manner provided by Section 2550, et seq., Mississippi Code of 1942. In the event no choice is made, the only part of the 1954 laws applicable to appellant would be the confinement in the maximum security cell block at the State penitentiary pending execution, whether by lethal gas if he so chooses, or by electrocution if he makes no choice. It is noted that the law does not provide for solitary confinement in the maximum security cell block, and the allegations of the petition do not reveal any solitary confinement. In the case of Rooney v. North Dakota, 196 U.S. 319, the Supreme Court of the United States had this situation before them. In that case, the statute in force when the death sentence was pronounced differed from those in force when the crime was committed and when the verdict was rendered, in these particulars:

“1. By the later law, close confinement in the penitentiary for not less than six months and not more than nine months, after judgment and before execution, was substituted for confinement in the county jail for not less than three months nor more than six months after judgment and before execution.

“2. By the later law, hanging, within an inclosure at the penitentiary by the warden or his deputy, was substituted for hanging by the sheriff within the yard of the jail of the county in which the conviction occurred.

“We are of opinion that in the particulars just mentioned the statute of 1903 is not repugnant to the constitutional provision declaring that no State shall pass an ex post facto law. It did not create a new offense nor aggravate or increase the enormity of the crime for the commission of which the accused was convicted, nor require the infliction upon the accused of any greater or more severe punishment than was prescribed by law at the time of the commission of the offense.”

In the Rooney case, the Court further said:

“Again, it is said that the law in force when the crime was committed only required confinement, whereas the later statute required close confinement. But this difference of phraseology is not material. ‘Confinement’ and ‘close confinement’ equally mean such custody, and only such custody, as will safely secure the production of the body of the prisoner on the day appointed for his execution.

“The objection that the later law required the execution of the sentence of death to take place within the limits of the penitentiary rather than in the county jail, as provided in the previous statute, is without merit. However material the place of confinement may be in case of some crimes not involving life, the place of execution, when the punishment is death, within the limits of the State, is of no practical consequence to the criminal. On such a matter he is not entitled to be heard.

“The views we have expressed are in accord with those announced by the Supreme Court of North Dakota. State v. Rooney, 12 N. Dak. 144, 152.

“We are of opinion that the law of 1903 did not alter the situation to the material disadvantage of the criminal, and, therefore, was not ex post facto when applied to his case in the particulars mentioned.

“Judgment affirmed.”

There was a greater difference between the old law and the new in the Rooney case, insofar as disadvantage to the condemned is concerned, than there is between the old and the new law with which we are concerned.

This court recognizes the care we should exercise to guard against the denial of the rights of a condemned man, with particular reference to the constitutional interdiction against ex post facto laws. Confinement between the sentence of death and the execution of the death sentence is a part of punishment. Material changes not necessary to the public interest and the protection and safekeeping of the prisoner should not be wrought by a law passed after the commission of the crime. But the right and duty of the State in regard to such confinement should not be circumscribed to the extent that it is powerless to confine dangerous criminals safely, and thereby protect the public. We must assume that the legislature had sound reasons affecting safety and public welfare when it provided for the confinement of condemned men in the State penitentiary instead of county jails. The new law does not provide, in any substantial sense, a more severe or increased punishment by providing for confinement in the penitentiary.

Third: We do not find that the difference in conditions as alleged in the petition over that which would have prevailed if appellant had been confined in a county jail is as great as indicated in the petition. If appellant had been confined in the Sunflower County jail, we know our own records that appellant would have been confined with several condemned men. It is within our knowledge that the Hinds County Jail is one of the up to date and reasonably safe jails of tbe State, and prior to the construction of the maximum security cell block at the penitentiary, a number of condemned men were there confined. In any county jail that appellant might have been confined, he was likely to have been subjected to being confined with other condemned men.

Fourth: The burden of appellant’s complaint is directed to conditions to which he alleged he has been and is being subjected. Such are not required by the law under which he is confined. Under the prior law, he would have been confined in a county jail; in the later law he has been confined in the penitentiary. Nothing was changed except the place of confinement. The law does not direct that appellant be confined in the wing of the maximum security cell block known as “condemned row.” The Court does not administer the penitentiary nor the county jails. If the appellant had any complaint as to the manner in which he is being confined, or the treatment he is receiving, his remedy is not habeas corpus and under no event would it entitle appellant to be released and escape the punishment the law has imposed upon him.

Whatever view is taken on any or all phases of this case we know of no law that warrants us in releasing appellant and directing that he be relieved of the sentence of death.

Appellant’s contention that he is being confined in violation of the equal protection and due process of law guarantees of the United States Constitution is not well taken. Cf. Rogers v. Peck, 199 U.S. 425.

Affirmed.

Hall, Lee, Holmes, Arrington and Ethridge, JJ., concur. McGehee, C.J., and Roberds, J., dissent. Kyle, J., took no part.