Wetzel v. Wiggins

Bobebds, P. J.,

dissenting in part.

I agree that, under the circumstances, petitioner is not prejudiced by the change in the method of being put to death. This petition, however, involves the increase in punishment suffered in the period awaiting execution. Petitioner says that punishment has been greatly increased by law and in actual administration since his conviction, and that the law increasing such punishment is ex post facto and void as to him. In other words, he says that the punishment applicable to him from the time "of his sentence to the date of his execution is that prescribed by the law in force at the time of his convic*689tion and not that provided for by another law enacted after his conviction. In that contention I think he is correct.

He was convicted of murder in Sunflower County, Mississippi, in September 1953. He was sentenced to death September 23, 1953. The circuit judge ordered that he be placed in the county jail at Clarksdale to await the time of his execution. The circuit judge had the power to do that. In fact that was the method provided by law. On January 1, 1955, he was removed from that jail and carried to the State Penitentiary to await his execution. He has been in the penitentiary since that time. Now, the circumstances awaiting his execution which would have surrounded him in jail at Clarksdale and those which did surround him in the penitentiary are set out in the petition. The allegations of the petition are sworn to by counsel for Wetzel as being “true and correct.” In addition, there is attached to the petition affidavits of individuals supporting the allegations, and in addition to that petitioner offered to produce oral proof before the circuit judge to substantiate such allegations, which permission was not granted. The State makes no answer to the petition; therefore, for purpose of this hearing we must treat the allegations of the petition as being true.

That petition avers, in substance, that when petitioner was transported to the penitentiary he was there incarcerated in what is called the “Maximum Security Cell Block,” ordinarily called death chamber or death row; that this block houses the lethal gas chamber and which chamber is adjacent to, adjoins and abuts said cell block; that he has been confined in said death cell with other persons condemned to death; that during the time he ^has been so incarcerated nine other persons have been executed in the lethal gas chamber; that these nine men have passed by and shaken hands with him in a farewell-goodbye; that the condemned row “is in such close *690proximity to the lethal gas chamber that he has heard the last prayers administered to the condemned in a row at the end of death row and adjoining the chamber itself * * *”; that he hasheard the prayers and lamentations of the condemned before taking their last walk, as well as the administration to them of the last rites by the ministers of the gospel; that there has constantly fallen upon his ears the chants and spirituals of “lost and forgotten men”; that he has been and is in hearing of the preparations which are made in the gas chamber preparatory to executions; the opening and closing of the doors to the gas chamber, and the noise of the fan which is operated after executions to remove the fumes from the chamber after death of the victims; and that he has heard the sound of the hearse coming for the bodies, the loading of the bodies into the hearse and the conversations which have taken place during those last activities. In other words, that he has, in effect, undergone nine executions.

Now, all of these assertions may not be true but we must accept them as true on this hearing.

The petition, affidavits, etc., further state, without answer thereto or denial thereof, that these conditions did not exist at the Clarksdale jail. Had he remained there he would not have undergone the ordeal created by them and set out above. In addition, the petition states that in that jail he was comfortable; that he was permitted to have visitors; to see his loved ones, and, so far as his physical surroundings and his contact with other persons, were concerned, he rested in peace and quiet.

The physical arrangements for confining prisoners in tbe. penitentiary awaiting execution were provided by the law, and the ordeals which petitioner has undergone by confinement in the penitentiary have been in conformity with, and as a natural result of the administra-' tion of, the law, which, law became effective December 31,1954. Chapter 220, joreneral Laws of Miss. 1954.

*691A statute is ex post facto “which aggravates the punishment after conviction.” 15 Am. Jur., Criminal Law, Sec. 516. Conditions affecting the prisoner from the time of his conviction to the time of his execution are, of course, a part of his punishment. It seems so clear as not to require discussion that the treatment to he administered to condemned prisoners from date of conviction to date of death, provided for by the law of 1954, aggravated the treatment provided for by the law in force when petitioner was convicted. As to that interim treatment, the old and not the new law was applicable to the petitioner.

But it is said that Wetzel had been convicted in Jones County of robbery and sentenced to serve thirty years in the State Penitentiary and had served only three years of such punishment at the time he was convicted of murder — the crime involved here — and that this petition should be denied for that reason. In my judgment, the other crime is in nowise involved in this proceeding. Wetzel was not being confined in this case for another crime. He was being held and confined on the crime of murder. His petition nowhere mentions another crime. The first time that was injected into the proceeding was in the brief of the State. No issue is made up, or presented, as to that. We know nothing of the conditions surrounding the other case. For all we know, he may have been pardoned, or punishment suspended, as to any other case. The order of confinement of the circuit judge in this case placed Wetzel in the county jail until “* * * he shall be taken by the official operator of the state electric chair of the State of Mississippi and placed in said electric chair and there suffer death by electrocution.” No one claims he was being confined in the State Penitentiary except for the purpose of being executed for the crime involved in this proceeding. He was not serving a term for another-crime. The entire proceeding here is directed and confined to his conviction of mur*692der. The Sheriff of Sunflower County, in which county Wetzel was convicted of the crime here involved, is a party to this proceeding. The Sheriff of Jones County is not a party, as would need be if the proceeding had for its object the discharge of Wetzel from the penitentiary for a crime committed in Jones County.

January 28, 1956 84 So. 2d 795

In my opinion, the punishment of Wetzel by administration of gas will not contravene his legal rights but the interim punishment which has been, and will continue to be, administered to him does violate his legal rights. In my view we should order Wetzel redelivered to the Sheriff of Sunflower County for confinement in jail as the circuit judge may order, to await the time of his execution, which was the law when Wetzel was convicted.

ON MOTION TO ADVANCE ON THE DOCKET

McGehee, C. J.

This is a habeas corpus proceeding here on appeal from the Circuit Court of Sunflower County, and this motion to advance the cause on the docket of this Court is made under the provisions of Section 1956, Code of 1942, entitling habeas corpus proceedings to be advanced on the docket as a matter of right.

In view of the fact that the petitioner William A. Wetzel has been sentenced to be put to death on February 9, 1956, and in view of the necessity of hearing his appeal from the judgment of the circuit court denying to him a writ of habeas corpus prior to the date fixed for the execution of his death sentence, or the postponing such date of execution, the Attorney General of the State has waived the three days notice of this motion to advance the setting of the case for hearing on appeal, and has agreed that the Court may entertain said motion and appeal at its convenience, and the Court has concluded to set the case for hearing on the appeal on Wednesday, February 1, 1956, in the Supreme Courtroom at 10 *6930 ’clock A. M., and of which fact the attorneys for the appellant William A. Wetzel and for the State of Mississippi have been duly notified.

The motion to advance is sustained and the habeas corpus proceeding is set for hearing on appeal at the time and place above stated.

Motion to advance sustained.

Roberds, Hall, Lee, Arrington and Gillespie, JJ., concur. Kyle, Holmes and Ethridge, JJ., having taken no part.