At the April, 1931, term of the circuit court of Jackson county, appellant was convicted of the crime of rape, and the death penalty therefor was imposed. Motion for a new trial was there made and overruled; appeal was prosecuted here and the judgment affirmed; and a new date for the execution of the sentence was fixed. See Carraway v. State (Miss.), 137 So. 325. On January 8, 1932, after several reprieves had been granted by the governor, and on the day the sentence was about to be executed, appellant applied to the judge of the circuit court for a writ of error coram nobis, which was denied in vacation. One of the judges of this court granted an appeal with supersedeas; and it was held thereon by this court that no appeal was allowed from an order of a trial judge in vacation refusing the writ. See Carraway v. State, 163 Miss. 639, 141 So. 342.
At the next succeeding term of the circuit court appellant was brought into court on a writ of habeas corpus *Page 687 sued out for the purpose of having the sentence of the law imposed, and in answer thereto the appellant filed a motion for a new trial. Evidence was heard thereon and overruled by the court, and thereafter one of the judges of this court allowed an appeal with supersedeas. On the hearing of that appeal in this court, the judgment of the trial court was affirmed (see Carraway v. State, 167 Miss. 390, 148 So. 340), and June 28, 1933, was fixed for the execution of the judgment.
Thereupon appellant, before the date of execution, filed a petition in the district court of the United States for the southern district of Mississippi for a writ of habeas corpus and an injunction against the execution of the sentence, which injunction was granted on an ex parte hearing. After the date for the execution of the sentence had passed, and before the final hearing in the federal district court, appellant filed another motion for a new trial in the circuit court of Jackson county and dismissed his proceeding in the Federal district court. There the court, on hearing the proof offered on the petition and the arguments of counsel, overruled the motion, and the appellant, who was in court in person and represented by counsel was again sentenced to be hanged, and the date of his execution was fixed; whereupon the appellant objected to the imposition of the sentence because a writ of habeas corpus had not been sued out pursuant to section 1311, Code 1930. From this last judgment overruling the third motion for a new trial and imposing the death sentence, appellant was also allowed an appeal with supersedeas.
When the case was last considered by the court, 167 Miss. 390,148 So. 340, every fact, in substance, presented here was then before us. In the former case every question here presented was there carefully considered and decided. Our decision there finally determined the case and should be accepted as conclusive on those facts whether argued or not. *Page 688
This is, in effect, the fourth motion for a new trial upon the facts which were known to the defendant and his counsel when the case was tried, and the first motion was, by the lower court, overruled.
We considered the third motion for a new trial and reached the conclusion there was no merit in it. Every material fact heard by the court in this last, or fourth, motion for a new trial was before this court, and was examined by this court on the third motion for a new trial. The evidence taken on the third trial is made a part of this record.
This appears to be no longer a trial of the appellant's case, but an investigation of the trial judge and the appellant's attorney, Whetstone. The record clearly shows that the family of Carraway employed and paid Whetstone as appellant's counsel. He had the right to choose any lawyer he saw fit, and it would be a dangerous proceeding if a court declined to permit the counsel chosen and selected by the family of accused, and accepted by the appellant, to represent the appellant in the trial of his case.
Whetstone said, in effect, that he defended Carraway to the best of his ability; that he had some absent witnesses who would, perhaps, have testified strongly as to an alibi, but that he decided, because the witnesses he had present were white men, it would be better for the defendant to go to trial. He does testify that Colmer, the district attorney, told him, in effect, that he better not apply for a continuance on account of those witnesses, as it might "be worse" for the appellant. Whetstone, however, testified positively that he was not influenced by fear, that he exercised his own judgment in not asking for a change of venue and in not asking for a continuance of the case.
Carraway appears to be willing to testify in the various stages of this case to meet the exigencies of the particular occasion, and his several examinations do not *Page 689 demonstrate any lack of appreciation or insufficient intelligence to conduct his case in court.
The entire record demonstrates that there is not now, nor has there been, sufficient evidence upon which to successfully predicate a motion for a new trial. Throughout the numerous hearings that have been presented to this court, there nowhere appears in the record, at this date, any substantial evidence upon which a motion for a change of venue could have been sustained. There was no call for military aid, and no unusual number of deputy sheriffs, and no evidence of any excitement about the courthouse or in the town, at the time the trial took place. The appellant had remained in jail in an adjoining county, very accessisble to a mob if one had been formed or contemplated. The case is remarkably free from even the substantial threat of a mob, considering all the facts surrounding it. The trial judge, in overruling the third motion for a new trial, declared it appeared to him that "every avenue has been exhausted in the interest of this defendant, not only for the purpose of obtaining a new trial, but for the purpose of delay in a final judgment of the court. I heard this case very carefully, I heard the witnesses testify, I heard this lady relate the circumstances and she related it in a way that left no doubt in my mind about the truth of what she said. . . . I am satisfied that his conviction was a fair conviction, that he was justly and properly convicted; and I can see nothing connected with this case that would justify this court, if it had the power, in now setting aside what has been done and going back and starting over again."
Much stress is laid upon the fact that Wentzell, a witness who testified before the jury on the trial of the case, had changed his testimony as to the appellant's statement. On that trial, he testified that Carraway said, "I did it." He changed his testimony under these motions for a new trial, and quoted Carraway as saying, "I was so drunk I don't know if I did it or not." *Page 690
On the third appeal, we, in effect, said that these matters were foreclosed, and did not constitute grounds for a new trial, and there reannounced the principles found in Cummins v. State,144 Miss. 634, 110 So. 206, 207, in which a prosecuting witness who had testified to the guilt of rape of the appellant recanted and wrote a letter saying she had testified falsely, and, in that behalf, this court said: "There is no merit in this appeal, as the application for writ of error coram nobis will not allow any such case. If we should set aside a conviction in a criminal case merely because some witness subsequent to the trial confessed, or stated that his testimony was not true, there would never be an end to litigations. The credibility of the witness and the truthfulness of her testimony was an issue in the main trial, and the defendant was perfectly competent to understand the issue and conduct his defense."
The facts in the case at bar are so utterly and entirely different from the facts before the United States supreme court in the case of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, that we think it would be useless to point out the difference. There the court held, in effect, that the trial court denied the appellant the benefit of counsel to represent him in his case, and allowed the counsel he did select no time in which to prepare the case. The record in the case before us demonstrates, beyond the shadow of a doubt, that Whetstone was fully advised in the premises, and, while he may not have defended the case as a member of this court would have, or as counsel who now represent the appellant, it is unthinkable that an appellate court shall turn aside to investigate the record to see if, perchance, some point was not made by appellant's counsel or some evidence not presented which this court might think would have been advantageous to the appellant.
To sum up, so far as the absent witnesses are concerned, throughout the several proceedings, the testimony *Page 691 of those witnesses was never produced in court, nor was the failure to do so accounted for, as required by the rules of this court. So far as the conversation with the district attorney is concerned, we feel that we should say that, if such a conversation should be thought to be a ground for declaring the judgment void, then the enforcement of the criminal laws in this state might as well be abandoned. No fear was produced in Whetstone's mind by Colmer, and, if he should say now there was, this record contains no substantial basis therefor.
There was no fraud practiced by Whetstone, the district attorney, the trial court, or anybody else, upon this appellant.
The court below should not have entertained these motions for a new trial, because no new fact is presented, according to the laws of Mississippi, and, we are persuaded to believe, of the United States, to show that the appellant did not have a fair and impartial trial.
The case will be affirmed, and Thursday, May 31, 1934, is fixed as the date upon which the sentence of death shall be inflicted according to law.
Affirmed and sentence to be executed Thursday, May 31, 1934.