Hamilton v. State

Citation116 So.2d 906,270 Ala. 184
Decision Date17 September 1959
Docket Number6 Div. 164
CourtSupreme Court of Alabama
PartiesCharles Clarence HAMILTON v. STATE of Alabama.

Orzell Billingsley, Jr., Arthur D. Shores, Peter A. Hall and Oscar W. Adams, Jr., Birmingham, for appellant.

John Patterson, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., for the State.

LIVINGSTON, Chief Justice.

The appellant, Charles Clarence Hamilton, was indicted by the Grand Jury of the Tenth Judicial Circuit of Alabama for burglary in the first degree under the provisions of Sec. 85 of Title 14, Code of Alabama 1940, which reads as follows:

' § 85. Burglary in the first degree.--Any person who, in the nighttime, with intent to steal or to commit a felony, breaks into and enters any inhabited dwelling house, or any other house or building, which is occupied by any person lodged therein is guilty of burglary in the first degree, and shall on conviction be punished at the discretion of the jury, by death or by imprisonment in the penitentiary for not less than ten years.'

The indictment contained two counts. Count 1 charged the defendant with breaking and entering into the inhabited dwelling house of Jacob C. Milko in the nighttime with intent to steal, etc. Count 2 of the indictment charged the defendant with breaking and entering into the inhabited dwelling house of Jacob C. Milko in the nighttime with intent to ravish, etc.

The jury returned a verdict of guilty as charged in Count 2 of the indictment and fixed the punishment at death. Judgment was rendered accordingly. Appellant's motion for a new trial was overruled. This appeal comes to this court under the Automatice Appeal Statute, Title 15, Sec. 382(1) et seq., Code of Alabama 1940, Cumulative Pocket Part. The Honorable Clell I. Mayfield was appointed by the trial court to, and did, defend the appellant on his trial in the court below. On appeal, it appears that the appellant is represented by four other and different attorneys at law.

The evidence for the state tended to prove the following:

On the night of October 13, 1956, Mr. and Mrs. Jacob C. Milko were occupying a dwelling house designated as 1501 Avenue G, Ensley, Jefferson County, Alabama. Living with Mr. and Mrs. Milko were the grandparents of Mrs. Milko. The grandparents were Jake Giangrosso and Mary Giangrosso, each of whom occupied separate rooms. The grandmother, Mrs. Mary Giangrosso, occupied a room adjoining that of Mr. and Mrs. Milko, connected by a door between the two rooms. Mrs. Giangrosso's room also had a door leading out to the front porch of the dwelling house. Jake Giangrosso occupied a room in another part of the dwelling.

During the early morning hours, sometime between 2:00 and 3:00 o'clock of October 13, 1956, Mr. and Mrs. Milko heard the grandmother in the adjoining room making a loud noise or groaning. Mr. Milko got out of bed and opened the door leading into Mrs. Giangrosso's room, where he found the defendant, Charles Clarence Hamilton, standing near the door between the two rooms. His shoes were off, one being under the bed of Mrs. Giangrosso, and the other near the front door. His pants were off and were on the bed of Mrs. Giangrosso, and he was in his underwear, and as expressed by Mr. Milko, 'His downstairs was hanging out, and he didn't have no shoes on and he had an old corduroy shirt on, and he was staring me straight in the face. That was all he had on.' The front door of Mrs. Giangrosso's bedroom leading to the porch was open. Mr. Milko went back in his bedroom and procured a revolver, returned to Mrs. Giangrosso's bedroom where the appellant was still standing, turned on the light, held his gun on appellant, and told his wife, Mrs. Milko, to call the law. Mrs. Giangrosso was standing between the bed and the door leading into Mr. Milko's room. Upon turning the lights on, the front door was seen to be wide open. Mr. Milko held the appellant until two police officers arrived, which was only a few minutes. Mr. Milko further testified that he was employed by the Tennessee Coal, Iron and Land Company in the Transportation Division, and that on the day in question, his working hours were from 3:00 p. m. until 11:00 p. m., and that in his best judgment he did not get home on the night of October 12, 1956 until around a quarter to 11:00 o'clock; that when he got home his wife had retired and his wife's grandmother and grandfather had also retired; that he unlocked the front door leading into Mrs. Giangrosso's bedroom and went through her bedroom into his own bedroom, and Mrs. Giangrosso was in bed at that time, as was also his wife.

Testimony further shows that Mrs. Giangrosso is of Italian birth, speaks English with difficulty, is partially blind, more or less feeble, and suffers with a heart condition. Testimony further shows that the front door leading from Mrs. Giangrosso's bedroom to the outside was locked prior to the defendant's entry, and after apprehension of the defendant marks of a forcible entry were found on the door leading from the porch into Mrs. Giangrosso's bedroom.

Mrs. Milko testified that she had seen the defendant at previous times walking in front of the Milko dwelling and at those times he made certain obscene motions with his hands.

The appellant testified, in substance, that Mrs. Giangrosso came out of her house on the night in question and began to yell at him, and grabbed him by the arm and forced him to accompany her into her room; that she made him sit down by her bed for about an hour and take off his shoes; that her son-in-law came in and pulled his pistol on him and held him for the police. The appellant further testified that he was indicted November 9, 1956 by the Grand Jury for nighttime 'burglary with intent to steal.' (This testimony will be referred to later.) Appellant further testified that there was no telephone in the (Milko) house, and that Milko went outside the house to get the police.

In rebuttal, both Mr. and Mrs. Milko reiterated their testimony to the effect that there was a telephone in the Milko home and that Mrs. Milko called the officers while Mr. Milko held the appellant. The evidence further tends to show that the Milko home is located within two or three blocks of the police station.

Appellant insists that in capital cases where defendant is unable to employ counsel the court must appoint effective counsel for him, and failure to do so denied defendant a fair trial and violates the equal protection and due process clause of the Fourteenth Amendment to the Constitution of the United States and the Constitution §§ 1, 6 and laws of the State of Alabama; and that the right of accused to assistance of counsel includes the right to assistance from time of arraignment until beginning and end of the trial.

We have no quarrel with the above insistence of counsel for appellant, but the principle is without application to the record before us. The record discloses that Hon. Clell I. Mayfield was appointed by the court to defend, and did defend, the appellant on his trial in the court below. But counsel who now represent appellant on this appeal insist that Mr. Mayfield was not appointed until after appellant was arraigned and had entered a plea of not guilty. Present counsel attached to their brief a certified copy of the bench notes of the trial judge in this case. The argument is that the bench notes show that appellant was arraigned on March 1, 1957, and also show that Mr. Mayfield was appointed counsel for appellant on March 4, 1957. The record contains the following minute entry:

'ARRAIGNMENT

'THE STATE

VS.

CHARLES CLARENCE HAMILTON Indictment for Burglary with Intent to Steal, Burglary with Intent to Ravish

Honorable Wallace Gibson, Judge Presiding

'This the 1st day of March, 1957, came Emmett Perry, Solicitor, who prosecutes for the State of Alabama, and also came the defendant in his own proper person and by attorney, and the said defendant being now in open Court, and being duly arraigned upon the indictment in this cause, for his plea thereto says that he is not guilty.'

Also, the judgment entry of the 23rd day of April, 1957, the date on which appellant was tried, is to the same effect as the minute entry upon arraignment.

A minute entry constitutes the final record of a judgment. It cannot, in a court of record, be impeached by the judge's bench notes or memoranda, which operate only as a direction to the clerk as to what judgment and orders shall be entered on the court's records. Ex parte Haynes (Haynes v. State), 39 Ala.App. 349, 98 So.2d 670; Lockhart v. State, 34 Ala.App. 297, 39 So.2d 40.

In Du Pree v. Hart, 242 Ala. 690, 8 So.2d 183, 186, it is stated:

'It is said in Briggs v. Tennessee C., I & Ry. Co., 175 Ala. 130, at page 142, 57 So. 882, that there is no law requiring a judge to make bench notes, and because such notes do not include rulings which appear in the judgment entry is not good ground to hold that such rulings were not made. Bench notes were not necessary to sustain a judgment entered on the minutes during the term of court, against attack made on the judgment; and the judgment entry prevails over the bench notes when they conflict. Lockwood v. Thompson & Buchmann, 198 Ala. 295(3), 301, 73 So. 504. But they were always necessary to justify an order nunc pro tunc. During the term prior to the Code of 1923 the judge had control of the entry and could add to, strike out or alter its records. Wilder v. Bush, 201 Ala. 21, 75 So. 143. Under section 6670, Code of 1923, the judge had such power for thirty days after the judgment was rendered. Code of 1940, Title 13, section 119.'

Counsel for appellant next insist that to constitute burglary in the first degree 'there must be a...

To continue reading

Request your trial
18 cases
  • Douglas v. State
    • United States
    • Alabama Court of Appeals
    • October 8, 1963
    ...52, 82 S.Ct. 157, 7 L.Ed.2d 114 [see 273 Ala. 504, 142 So.2d 868], was a coram nobis proceeding. The opinion on appeal, 270 Ala. 184, at 188, 116 So.2d 906, at 910 (cert. den. 363 U.S. 852, 80 S.Ct. 1638, 4 L.Ed.2d 1737), shows an unsuccessful collateral attack on the record judgment by use......
  • Hamilton v. State of Alabama, 32
    • United States
    • United States Supreme Court
    • November 13, 1961
    ...claim because to do so would require impeaching the minute entries at the trial,2 which may not be done in Alabama on an appeal. 270 Ala. 184, 116 So.2d 906. When petitioner sought certiorari here, Alabama responded saying that his remedy to attack the judgment with extrinsic evidence was b......
  • Richardson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 14, 1984
    ...of an inhabited dwelling with the intent to commit a felony. It is not required that the intended act be consummated. Hamilton v. State, 270 Ala. 184, 116 So.2d 906, cert. denied, 363 U.S. 852, 80 S.Ct. 1638, 4 L.Ed.2d 1737 Richardson's intent was a jury question to be decided from all the ......
  • Ex parte Hamilton
    • United States
    • Supreme Court of Alabama
    • August 15, 1960
    ...breaking and entering an inhabited dwelling in the nighttime with intent to ravish. § 85, Title 14, Code 1940. We affirmed. Hamilton v. State, Ala., 116 So.2d 906. Writ of certiorari was denied by the Supreme Court of the United States on June 27, 1960. Hamilton v. State of Alabama, 80 S.Ct......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT