Aaron v. State, 3 Div. 223

CourtAlabama Court of Appeals
Writing for the CourtCATES
Citation43 Ala.App. 450,192 So.2d 456
PartiesEugene AARON v. STATE.
Decision Date29 November 1966
Docket Number3 Div. 223

Page 456

192 So.2d 456
43 Ala.App. 450
Eugene AARON
v.
STATE.
3 Div. 223.
Court of Appeals of Alabama.
Nov. 29, 1966.

Page 457

Eugene Aaron, pro se.

Richmond M. Flowers, Atty. Gen., and Robt F. Miller, Asst. Atty. Gen., for the State.

CATES, Judge.

This habeas corpus appeal came on for submission on written argument on October 13, 1966.

I.

November 21, 1955, Aaron pled guilty to assault with intent to rob in the Montgomery Circuit Court. Some nine years later, thanks to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, he got a new trial.

Rearraigned with counsel attending him on February 16, 1965, he again pled guilty. The court, on this second infra-judicial confession, adjudged Aaron guilty, duty performed allocutorial rites and pronounced a five year prison sentence.

March 8, 1966, Aaron petitioned the circuit court for the writ of habeas corpus. The actual writ issued does not appear in the record sent up.

The Attorney General, for the Warden of Kilby Prison, filed a pleading denominated 'Motion to Vacate Writ of Habeas Corpus and to Remand Petitioner,' this serving the office of a return to the writ.

Therein the State averred and attached certified copies of the 1955 and 1965 judgments of conviction. Also, the State assigned the following:

'3. For that Petitioner was given credit for the approximately ten years he had served in the Penitentiary on his original conviction of fifteen years in that and because the February 16, 1965 sentence was for a term of only five years.

'4. For that Petitioner's allegation that he has not received credit for the 'dead time' he served should go for naught in that it is incorrect and untrue.

'5. For that no matters are alleged which entitle Petitioner to the relief he seeks in this proceeding.'

Page 458

The judgment from which the instant appeal is taken appears in the following minute entry (R. 11):

'This cause came on the 3rd day of June, 1966, to be heard on the Petition for Writ of Habeas Corpus and the Answer and Motion of Respondent to dismiss the Petition, there being present the Petitioner in proper person and Julian S. Pinkston, Assistant Attorney General of Alabama, Attorney for the Respondent and was argued by Petitioner and said Attorney for Respondent.

'Upon consideration whereof, the Court is of the opinion that said Petitioner is and has been legally confined in the penitentiary and is not serving 'dead time'. Therefore, the Court denies the relief prayed for in the Petition and said Petition is, then, due to be dismissed and denied.

'It is, therefore, adjudged and ordered that the Petition for Writ of Habeas Corpus be, and the same is, hereby dismissed as to each and every prayer contained therein.

'Eugene W. Carter

Judge

'Filed in office this 7 day of June, 1966. John R. Matthews, Clerk.'

II.

Habeas corpus ad subjiciendum is 'the great and efficaceous writ' (iii Bl.Com. 131) which our Constitution, § 17, puts beyond suspension. 1 Yet, it is no mere jumble of post conviction archeological tools to explore willy nilly the bones of old criminal trials. Code 1940, T. 15, § 27, provides in part:

'No court, or judge, on the return of a writ of habeas corpus, has authority to inquire into the regularity or justice of any order, judgment, decree, or process of any court legally constituted, * * *.'

[43 Ala.App. 452] And T. 15, § 28, provides:

' § 28. If it appears that the party is in custody, by virtue of process from any court legally constituted, or issued by any officer in the course of judicial proceedings before him, authorized by law, he can only be discharged:

'(1) Where the jurisdiction of such court has been exceeded, either as to matter, place, sum, or person.

'(2) Where, though the original imprisonment was lawful, the party has become entitled to his discharge by reason of some subsequent act, omission, or event.

'(3) Where the process is void in consequence of some defect in matter or substance required by law.

'(4) Where the process, though in proper form, was issued in a case, or under circumstances, not allowed by law.

'(5) Where the process is not authorized by any judgment, order, or decree, or by any provision of the law.

'(6) Where the person who has the custody of him, under any order or process, is not the person authorized by law to detain him.'

Primarily, in Alabama practice, this writ serves to determine whether a court has exceeded its lawful jurisdiction in ordering imprisonment. Ex parte State in re Long, 87 Ala. 46, 6 So. 328; City of Birmingham v. Perry, 41 Ala.App. 173, 125 So.2d 279.

The maximum sentence for assault with intent to rob is twenty years in the penitentiary. Code 1940, T. 14, § 38.

Nothing in the instant record shows the working of the minds of (or what evidence

Page 459

was laid before) the circuit judges who meted out the sentences in 1955 and 1965. Certified copies of the 1955 and 1965 judgments as exhibits incorporated as part of the State's return are all the 'record evidence' before us. The allegations of the return not being traversed must, under our prerogative writ practice, be taken as true. Cook v. Echols, 16 Ala.App. 606, 80 So. 680.

The petitioner took the stand--called as a witness by the court. The gist of his evidence was that he had served approximately nine and one-half years on his fifteen years when venire de novo was awarded June 9, 1964.

On cross, petitioner testified in part (R. 16):

'Q You pled guilty with the understanding you were to receive credit for the time you...

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17 practice notes
  • North Carolina v. Pearce Simpson v. Rice, Nos. 413 and 418
    • United States
    • United States Supreme Court
    • June 23, 1969
    ...142 S.E.2d 633. In any event, Pearce was given such credit.6 Alabama law, however, seems to reflect a different view. Aaron v. State, 43 Ala.App. 450, 192 So.2d 456; Ex parte Merkes, 43 Ala.App. 640, 198 So.2d 789.7 And respondent Rice, upon being resentenced, was given no credit at all for......
  • Summers v. State, 8 Div. 124
    • United States
    • Alabama Court of Criminal Appeals
    • November 21, 1978
    ...the remedy of coram nobis automatically assimilates all rights imposed on state trials by the Fourteenth Amendment". Aaron v. State, 43 Ala.App. 450, 454, 192 So.2d 456, 460 (1966). The function or office of the writ lies to correct a judgment rendered by the court upon errors of fact not a......
  • Goolsby v. State, 6 Div. 202
    • United States
    • Alabama Court of Appeals
    • November 28, 1967
    ...charge; the verdict was for Count One (second degree burglary). Hence, there is no error. Code 1940, T. 7, § 273. IV. Aaron v. State, 43 Ala.App. 450, 192 So.2d 456, was an appeal from denial of habeas corpus. There Aaron tried to contest a second sentence of five years. The crime carried a......
  • Rice v. Simpson, Civ. A. No. 2583-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • September 26, 1967
    ...in Alabama post-conviction proceedings. In this connection, Judge Cates, speaking for the Alabama Court of Appeals in Aaron v. State, 43 Ala.App. 450, 192 So.2d 456 (Nov. 29, 1966), "`Moreover, we do not think that Alabama affords, after motion for new trial wherein the trial judge's power ......
  • Request a trial to view additional results
17 cases
  • North Carolina v. Pearce Simpson v. Rice, Nos. 413 and 418
    • United States
    • United States Supreme Court
    • June 23, 1969
    ...142 S.E.2d 633. In any event, Pearce was given such credit.6 Alabama law, however, seems to reflect a different view. Aaron v. State, 43 Ala.App. 450, 192 So.2d 456; Ex parte Merkes, 43 Ala.App. 640, 198 So.2d 789.7 And respondent Rice, upon being resentenced, was given no credit at all for......
  • Summers v. State, 8 Div. 124
    • United States
    • Alabama Court of Criminal Appeals
    • November 21, 1978
    ...the remedy of coram nobis automatically assimilates all rights imposed on state trials by the Fourteenth Amendment". Aaron v. State, 43 Ala.App. 450, 454, 192 So.2d 456, 460 (1966). The function or office of the writ lies to correct a judgment rendered by the court upon errors of fact not a......
  • Goolsby v. State, 6 Div. 202
    • United States
    • Alabama Court of Appeals
    • November 28, 1967
    ...charge; the verdict was for Count One (second degree burglary). Hence, there is no error. Code 1940, T. 7, § 273. IV. Aaron v. State, 43 Ala.App. 450, 192 So.2d 456, was an appeal from denial of habeas corpus. There Aaron tried to contest a second sentence of five years. The crime carried a......
  • Rice v. Simpson, Civ. A. No. 2583-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • September 26, 1967
    ...in Alabama post-conviction proceedings. In this connection, Judge Cates, speaking for the Alabama Court of Appeals in Aaron v. State, 43 Ala.App. 450, 192 So.2d 456 (Nov. 29, 1966), "`Moreover, we do not think that Alabama affords, after motion for new trial wherein the trial judge's power ......
  • Request a trial to view additional results

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