Garrett v. State, 4 Div. 411.
| Citation | 29 So.2d 8,248 Ala. 612 |
| Decision Date | 23 January 1947 |
| Docket Number | 4 Div. 411. |
| Parties | GARRETT v. STATE. |
| Court | Supreme Court of Alabama |
A. L. Patterson, of Phenix City, for appellant.
Wm N. McQueen, Atty. Gen., and John O. Harris, Asst. Atty. Gen for the State.
The defendant was convicted for the murder of Ruby Tolliver and received the death penalty.
He had previously served convictions, respectively, for the crimes of assault with intent to ravish and for murder in the first degree. The last sentence before the present one was life imprisonment for uxoricide. The present crime was committed while he was on parole.
He confessed as soon as he was arrested and on trial almost admitted the killing when on cross-examination in answer to the solicitor's question, 'How long had you been out on parole when you killed Ruby?' he answered, 'Two years and four or five months as near as I can remember it.' His confession was proven to have been voluntary and related that he forced the victim to accompany him from her own yard into the woods at the back of her home, where he first raped her and then cut her to death and buried the body in a shallow grave. This was the State's version of the occurrence, supported by credible corroborating evidence, and due to the weakness of the countervailing evidence of the defendant which sought to establish an alibi, we are convinced of the propriety of the jury's verdict.
The conviction is challenged here for the refusal of the trial court to permit the defendant, five days after arraignment and the interposition of the plea of not guilty, to interpose the special plea of not guilty by reason of insanity.
The governing statute is: 'When the defense of insanity is set up in any criminal prosecution it must be by special plea, interposed at the time of arraignment and entered of record upon the docket of the court * * *.' Code 1940 Tit. 15, § 423.
It is within the discretion of the trial court to refuse to permit this special plea if belatedly filed and we have said that the refusal to permit the filing of such plea 'after the time prescribed by law is not revisable on appeal.' Rohn v. State, 186 Ala. 5, 8, 65 So. 42, 43. See also, Morrell v. State, 136 Ala. 44, 34 So. 208: and Alston v. State, Ala.Sup., 26 So.2d 877.
This salutary rule is said to be without controlling influence if it should be made to appear that, in its enforcement, a constitutional right has been transgressed and it is on this theory that counsel seeks a reversal of the conviction.
The appointment of counsel to represent defendant and the arraignment occurred on the same day and the contention for error is that to thus refuse permission to later file the plea was a violation of due process provided under the Fourteenth Amendment of our federal Constitution in that accused was 'denied the right of counsel, with the accustomed incidents of consultation and opportunity of preparation for trial.' Powell v. Alabama, 287 U.S. 45, 50, 53 S.Ct. 55, 57, 77 L.Ed. 158, 84 A.L.R. 527.
Without deciding whether or not strict enforcement of our rule, on a proper showing, would be a denial of due process, we believe we can demonstrate the fallacy of appellant's insistence as applied to the circumstances disclosed by the record before us.
True as pointed out in the last cited case, the guarantee by the Fourteenth Amendment of assistance of counsel is not satisfied by a formal appointment of counsel to defend accused, but comprehends an opportunity for consultation and preparation of the defense. The record here, though, discloses no transgression of this guarantee. The defendant was arraigned seven days before the trial and, prior to arraignment, was given the privilege of counsel and the right to plead to the indictment, which he did. Rather than a showing of a denial of the guarantee of due process, the record indicates a failure of the...
To continue reading
Request your trial
-
Thomas v. State, 6 Div. 177
...has long been to allow such plea to be interposed orally and entered of record with the plea of not guilty on arraignment. Garrett v. State, 248 Ala. 612, 29 So.2d 8. The evidence is without dispute that appellant was regularly employed by Johnnie Wheat, a lumberman, a person other than Jac......
-
Jarrell v. State
...for this failure. The burden is on appellant to show that error was prejudicial and harmful to his substantial rights. Garrett v. State, 248 Ala. 612, 29 So.2d 8; Stallings v. State, 249 Ala. 580, 32 So.2d 236; Brown v. State, 33 Ala.App. 152, 31 So.2d To afford full review, counsel should ......
-
Harris v. Wainwright
...5 Cir., 1969, 406 F.2d 8. 2 We must accept that reading even though its correctness has been questioned in view of Garrett v. State, 1947, 248 Ala. 612, 29 So.2d 8, in which the Alabama Supreme Court did review the refusal of a trial judge to accept a plea of 3 F.S.A. 908.02 (1940): "Neithe......
-
Jarrell v. State
...case. We will look to the record to determine whether or not injury inured to the rights of the accused. Brown v. State, supra; Garrett v. State, supra; Stallings v. State, It is there disclosed that on the comparatively few occasions when objections were interposed and overruled by the cou......