Ex parte Seals

• Citation: 271 Ala. 622,126 So.2d 474
• Decision Date: 26 January 1961
• Docket Number: 1 Div. 949
• Parties: Ex parte Willie SEALS, Jr. Willie SEALS, Jr. v. STATE of Alabama.
• Court: Supreme Court of Alabama

Page 474

126 So.2d 474

271 Ala. 622

Ex parte Willie SEALS, Jr.

Willie SEALS, Jr. v. STATE of Alabama.

1 Div. 949.

Supreme Court of Alabama.

Jan. 26, 1961.

Chas. S. Conley, Montgomery, for petitioner.

MacDonald Gallion, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.

LIVINGSTON, Chief Justice.

Willie Seals, Jr., was convicted in the Circuit Court of Mobile County, Alabama, of the offense of rape. He is a Negro and his victim was a white woman.

On appeal to this court, Seals' conviction was affirmed, 122 So.2d 513.

The indictment against Seals was returned by the grand jury of Mobile County on October 24, 1958. He entered a plea of not guilty and was tried by a jury, which, on December 4, 1958, returned a verdict of guilty as charged and fixed his punishment at death.

Seals was represented at his trial by Honorable Wallace L. Johnson who did not file either a plea in abatement or a motion to quash the indictment, nor did he move to quash the venire or for a change of venue.

The judgment of conviction was affirmed by this Court on June 2, 1960, and his application for rehearing was denied on August 18, 1960.

Seals has filed in this Court his petition to be permitted to file a petition for writ of error coram nobis in the trial court. Such is the proper procedure in view of the fact that the judgment of the Circuit Court of Mobile County was affirmed here. Ex parte Taylor, 249 Ala. 667, 32 So.2d 659, affirmed 335 U.S. 252, 68 S.Ct. 1415, 92 L.Ed 1935; Ex parte Williams, 268 Ala. 535, 108 So.2d 454, and cases cited.

The attorney representing Seals in this proceeding is not the attorney that represented him on his trial in the court below on the charge of rape.

Petitioner insinuates in the petition presently before us that the Honorable Wallace L. Johnson was appointed by the trial court to defend petitioner on his trial in the court below. The record of the appeal in that case, which is before us and of which, of course, we take judicial knowledge (Johnson v. State, 242 Ala. 278, 5 So.2d 632), fails to disclose that such appointment was made by the Circuit Court of Mobile County. For aught that appears, Hon. Wallace L. Johnson was the personally chosen and employed attorney that represented Seals on his trial in the court below, and he was afforded ample time and opportunity to raise all questions in that court.

The state filed its motion to dismiss the original and amended petitions for leave to file a petition for writ of error coram nobis in the trial court.

Grounds of the petition numbered 11, 12, 13, 14, 15, 16 and 22 are based on the theory that the petitioner was a member of the colored race, and that members of such race had been intentionally and systematically excluded from both the grand jury and petit jury service solely on account of said race and color. It is not contended here that any matter involving the regularity of either the grand jury or petit jury was presented in the trial of this cause, either as originally conducted or on motion for a new trial. Clearly enough, it now comes too late. As was said in Johnson v. Williams, 244 Ala. 391, 13 So.2d 683, 686:

'* * * This was forcibly demonstrated in the opinion in Vernon v State, supra [240 Ala. 577, 200 So. 560], that one may waive and does waive his constitutional rights if he fails to assert or claim them at the appropriate time and place, and according to the established course of procedure. That petitioner had the perfect right to present this question upon his trial is amply demonstrated by reference to our decisions beginning as far back as 1882 in Green v. State, 73 Ala. 26, and coming down to our latest authorities, Millhouse v. State, 232 Ala. 567, 168 So. 665; Vaughn v. State, 235 Ala. 80, 177 So. 553; Vernon v. State, 239 Ala. 593, 196 So. 96; Vernon v. State, supra; Powell v. State, 224 Ala. 540, 141 So. 201; and the principle that one may waive and does waive his constitutional rights if he fails to assert or claim them at the appropriate time and place, and according to the established course of procedure is equally recognized by the decisions of the Federal courts. This very question concerning the jury venire was presented and so determined in In re Wood, 140 U.S. 278, 11 S.Ct. 738, 35 L.Ed 505, and Andrews v. Swartz, 156 U.S. 272, 15 S.Ct. 389, 39 L.Ed. 422, and the more recent case of Carruthers v. Reed, 8 Cir., 102 F.2d 933 (petition for certiorari denied by the United States Supreme Court in Carruthers v. Reed, 307 U.S. 643, 59 S.Ct. 1047, 83 L.Ed 1523). See, also, the recent case of Admas v. United States, 317 U.S. 269, 63 S.Ct. 236. 87 L.Ed 268, where this question is fully discussed. As forcibly pointed out in Vernon v. State, 240 Ala. 577, 200 So. 560, 563, under a contrary doctrine 'no skilled lawyer would ever attempt to raise such question until after conviction.'

'We have been cited to no case, either State or Federal, holding to a contrary doctrine. Indeed, such a principle, once recognized, would utterly destroy the doctrine of res adjudicata so far as criminal cases are concerned, reduce the trial of a defendant charged with crime to a mere game of change, and make a mockery of the courts. * * *'

See, also, Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed 83; Title 15, Section 278, Code of Alabama 1940.

In passing upon a petition for leave to petition the trial court for writ of error coram nobis, this Court is in the exercise of a wise discretion and must look to the reasonableness of the allegations of the petition and to the existence of the probability of the...