Coleman v. State

• Decision Date: 01 September 1970
• Docket Number: 6 Div. 316
• Citation: 239 So.2d 223,46 Ala.App. 737
• Parties: John Henry COLEMAN and Otis Stephens v. STATE
• Court: Alabama Court of Criminal Appeals

Page 223

239 So.2d 223

46 Ala.App. 737

John Henry COLEMAN and Otis Stephens v. STATE

6 Div. 316.

Court of Criminal Appeals of Alabama.

Sept. 1, 1970

Appeal from Jefferson, Circuit Court.

Hogan, Wilder Tarter & Wininger, Birmingham, for appellants.

McDonald Gallion, Atty. Gen., and Robt. F. Miller, Asst. Atty. Gen., for the State.

PER CURIAM.

The Supreme Court of the United States having vacated the judgments of conviction herein, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 this Court now remands the cause to the Jefferson Circuit Court for proceedings consistent with the opinion of that Court.

Remanded with directions.

CATES, Judge (dissenting).

I have read all seven opinions of the eight judges of the Supreme Court who voted on this cause, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387.

At the risk of being portrayed in the role of Sancho Panza, to extend the metaphor used by Mr. Justice Stewart, I conclude that the object of remand as stated by the opinion of Brennan, J., is infeasible.

First, Code 1940, T. 15, § 135 ¹ has been taken by most magistrates to be directory only. See annotations in Michie's 1958 Code. A matter which the Supreme Court of the United States considers of such importance should not be merely relegated to the usual verbal hurly burly, particularly of self-serving convict witnesses, exhibited by post-conviction hearings on coram nobis. Trying to reconstruct what happened in 1966 would be merely solving a non-problem.

Second, Act No. 526, September 16, 1963, § 1 provides for appointment of counsel in non-capital criminal cases for indigents charged in the circuit (or equivalent) courts or those others from which a direct appeal lies to this Court. ² It follows, therefore, that counsel cannot be appointed except by such courts. No contention is made that the preliminary hearing of instant concern was had in the Jefferson County Circuit Court.

We have been ordered by the majority opinion, Part III, to apply the so-called harmless error 'test enunciated in Chapman v. Calif., 386 U.S. 18, (87 S.Ct. 824, 17 L.Ed.2d 705). ' This I take also to embrace Harrington v. Calif., 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284: '* * * the probable impact of (error) on the minds of an average jury.'

All that I can envisage as the outcome of having the circuit court enquire as to whether or not Coleman and Stephens were 'otherwise' prejudiced by the absence of counsel at the preliminary hearing, would be some kind of a rehash involving cross-examination of the State's witnesses proved to have testified at the preliminary hearing. What new evidence this rerun would uncover, of course, I cannot know. If, however, some prosecution witness testified at the preliminary but not before the petty jury it is conceivable that remandment might elicit some new aspect of the State's case.

I believe that all that will result in the future will be either a preliminary hearing before a court with power to appoint counsel for indigents or else prosecutors will deny all hearings before indictment. See Ex parte Simpson, 3 Ala.App. 222, 57 So. 518. In Braden v. State, 45 Ala.App. 186, 227 So.2d 816 we wrote:

'Some attempt appears in the record to have been made to claim error because of the absence of a preliminary hearing. See Code 1940, T. 15, § 128 et seq.

'Preliminary examination is laid down as a mode of determining the regularity of detention before (i. e. without) indictment. See Ex parte Thaggard, 42 Ala.App. 229, 159 So.2d 813, affirmed 276 Ala. 117, 159 So.2d 820. However, if the magistrate holds no preliminary examination, a prisoner's proper praecipe for a writ is one for mandamus, not for habeas corpus. Ex parte Simpson, 3 Ala.App. 222, 57 So.2d 518; State v. Humphrey, 125 Ala. 110, 27 So. 969; State v. Richburg, 42 Ala.App. 495, 168 So.2d 628(3).

'Upon indictment by a properly chosen grand jury, then a determination of there being probable cause has been made so as to hold the accused to answer to a petty jury. Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283.

'In United States ex rel. Hughes v. Gault, 271 U.S. 142, 46 S.Ct. 459, 460, 70 L.Ed. 875, we find per Holmes, J.:

'The Constitution does not require any preliminary hearing before a person charged with a crime against the United States is brought into the Court having jurisdiction of the charge. There he may deny the jurisdiction of the Court as he may deny his guilt, and the Constitution is satisfied by his right to contest it there. * * *'

To compound matters, Alabama has no commission of jail delivery.

Emphatically, I find nothing in the myriad opinions that would authorize quashing the indictments.

Hence, I think the puzzle is capable of being decided in this Court without need for the circuit court's developing evidence which can only be in the realm of what might have been had there been lawyers for the defendants at the preliminary examination.

If there is validity to Part II of the opinion of Brennan, J., then the following analysis demonstrates the futility of remandment:

1. Erroneous or improper prosecution. This point seems moot in view of the petty jury's verdict. The cases are replete with aphorisms that the probable cause to bind an accused over to a grand jury does not...