Opinion
No. 45257.
April 7, 1969.
Appeal from the Circuit Court, Washington County, Arthur B. Clark, Jr., J.
Petition and motion continued for consideration of appeal on merits.
Appeal from Circuit Court, Washington County; Arthur B. Clark, Jr., Judge.
J. Robertshaw, Greenville, for appellant.
Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
ON PETITION FOR CORAM NOBIS AND MOTION TO VACATE JUDGMENT AND GRANT NEW TRIAL
Vernon Murphree, appellant, was convicted of manslaughter in the Circuit Court of Washington County and has appealed to this Court. His appeal is now pending but will not be reached for consideration and decision until the September 1969 term. In the interim, Murphree has filed a petition in the nature of a writ of error coram nobis, seeking leave to file a motion in the circuit court to vacate his judgment of conviction and to grant him a new trial. The basis of the petition is alleged to be newly discovered evidence, consisting of a report by the Federal Bureau of Investigation to the Chief of Police of Greenville with reference to a lug wrench allegedly used by appellant in the slaying. The report states (a) that chemical tests were positive for the "possible presence of blood," but the sample on the wrench was insufficient to establish the presence of blood, and (b) that no brain tissue was identified on the exhibit. The petition alleges that the report strongly suggests that the exhibit could not have been used as a homicide weapon.
Appellant has also filed a motion to vacate the judgment and for a new trial, on the basis of this FBI report, which was unknown to counsel for defendant at the time of trial. Both the motion and petition allege that defendant was denied the right to a fair trial because the FBI report was not made available to the court, jury or defense counsel.
In the present posture of this case, the petition and the motion are premature. This Court has not yet considered the merits of Murphree's appeal. It has not studied the record or the briefs, and hence it is unable to appraise at this time the materiality of appellant's averments in his petition and motion. Their consideration and disposition will therefore be passed and continued until decision of the appeal on the merits. Cf. Wetzel v. State, 225 Miss. 450, 477, 76 So.2d 194 (1954) (on petition for writ of error coram nobis); Wetzel v. State, 225 Miss. 450, 76 So.2d 188 (1954) (on the merits).
Petition in nature of writ of error coram nobis and motion to vacate judgment and for new trial continued for consideration of appeal on merits.
All Justices concur.