Dawson v. State, 8 Div. 157

• Decision Date: 27 August 1968
• Docket Number: 8 Div. 157
• Citation: 44 Ala.App. 525,215 So.2d 459
• Parties: Dewitt DAWSON v. STATE.
• Court: Alabama Court of Appeals

Page 459

215 So.2d 459

44 Ala.App. 525

Dewitt DAWSON v. STATE.

8 Div. 157.

Court of Appeals of Alabama.

Aug. 27, 1968.

Rehearing Denied Oct 8, 1968.

Jas. H. Tompkins, Tuscumbia, for appellant.

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

PRICE, Presiding Judge.

This appellant entered a plea of guilty to an indictment charging him with forgery and was sentenced to a year and a day in the penitentiary.

Thereafter he filed a petition captioned a motion for a new trial in which he sought to vacate the judgment, with leave to withdraw the guilty plea, and prayed that he be granted a trial.

It is alleged that the crime for which accused has been convicted was committed by another person who has since signed a confession of guilt; that this is newly discovered evidence which was not available to petitioner and that he could not by the exercise of ordinary diligence procure the testimony of the alleged confessor at the time set for trial.

At the hearing on the motion one James Edward Bell testified he is a first cousin to Dewitt Dawson; that he heard of Dawson's arrest for forging a check at the Liberty Super Market in Sheffield a short time after it occurred; that Bell purchased the check in question, along with three other checks, in Sheffield from a man he had never seen before, paying him $100.00 for all the checks; that he obtained the money to pay for the checks from the sale of beer; that he thinks he bought a carton of cigarettes but didn't remember what brand, at the Liberty Super Market and cashed the check for $97.84; that he cashed two other checks and burned the fourth; that after he heard Dawson had been put in jail he told two boys, who picked him up when he was hitch-hiking, that he was guilty of the offense for which Dawson had been arrested; that after Dawson had entered a plea of guilty he went to the jail and told Dawson he hated to see him sent off for something he didn't do. He asked Dawson to suggest the names of lawyers and asked about a certain lawyer in Russellville and said he would like to talk with him. Dawson's wife was there at the jail to visit him and witness asked her to take him to Russellville. He signed a statement in the lawyer's office on August 11th in which he claimed he committed this offense. He is willing to plead guilty to the charge. Dewitt Dawson was not with him on any of the occasions when he passed the bad checks.

On cross examination Bell stated that before he signed the confession the two boys were the only persons he told he had cashed the check, and he did not tell Dawson until after he signed it. He never told Mrs. Dawson his purpose in going to Russellville to see the lawyer. The witness had stated on direct examination that he was wearing a white sport coat when he cashed the check at Liberty Super Market and that he later burned it. He stated it was a woman who cashed the check at Liberty Super Market. He could not remember whether it was afternoon or evening. On cross examination he couldn't remember on which of the check cashing occasions he wore the coat and could not remember whether it was a man or woman who cashed the check.

Bell testified he could not read; that he never endorsed either of them. The name W. B. Dickerson, Jr., was already on the checks when he received them. He did not remember what he bought when he cashed the other checks at Kwik Check and a men's clothing store in Florence.

In response to questions from the court the witness stated he spent the night before the hearing at the home of Dawson's brother.

Mr. Roger H. Bedford, one of the attorneys representing Dawson on this motion, testified Bell signed the confession in his office in Russellville on August 11, 1967. This was the first time he had ever seen Bell. Dawson called witness on August 10th complaining about his sentence and asked if witness could represent him in that matter. Witness told him he had three attorneys and he knew of no way he could help him. The next day Dawson called again and informed him that his wife and Bell were on their way to Russellville to see him; that Bell wanted to talk with him and intimated he believed Bell had passed the checks but did not say Bell would sign a confession. When Bell came into his office he said he wanted to confess to the crimes Dawson was charged with and mentioned two checks in Lauderdale County and one in Calbert County.

Dewitt Dawson testified he entered a plea of guilty to the charge of forgery on August 7, 1967. At that time he had no knowledge of the fact that James Bell would confess nor any information that would cause him to believe Bell had committed the offense and did not know how he could have presented the defense of a confession on Bell's part; that he told one of his attorneys he suspected James Bell. He did not know for sure that James Bell passed the check but he had good reason for relieving Bell did it, and even if he had known of the facts contained in the confession he had no knowledge that Bell would sign a confession or testify he committed the offense.

On cross examination appellant testified he didn't think he told either of his lawyers James Bell cashed the check. He told them he could get a picture of the man who did it and they could show it to the woman who identified Dawson as the person who passed the check. Bell had told Lovell and Kilpatrick, friends of witness, and other parties that he cashed the checks. Lovell and kilpatrick told him of the conversation with Bell after Dawson plead guilty. Appellant's brother, Homer Gene, told him several months before his case was set for trial that Bell said he was the guilty party but witness never used the name James Bell to any of his attorneys. It was after he was arrested and was on bond that Homer Gone told him about it, but he never asked Bell about it and did not ask anyone else to talk with Bell about it. He and James Bell were first cousins and had always been good friends.

Dawson further testified he was on parole from a grand larceny conviction when he was arrested on the present charge. He had three employed lawyers of his own choosing to represent him. They were present in court and he advised with them the day he entered the plea of guilty.

On redirect examination appellant testified he entered his guilty plea because he knew if he was convicted after a trial his sentence would be for longer than a year and a day. Also, one of his attorneys told him the sentence would run concurrently with the one he already had. The court then asked witness if he did not remember that he was asked, 'How do you plead;' that defendant answered, 'I plead guilty' and before the court could say anything further one of the attorneys asked, 'Sentence to begin immediately?' The witness answered 'Yes.' The court continued: 'And I said 'wait a minute, that wasn't the agreement I had,' and you all went over there and talked. Is that right?' The witness said 'A. Yes, sir, we went in there and talked and you come in there and got us and told us--' After further discussion, the record shows the following:

'By the Court: See if this is right. I said that when the minutes was written up--when I wrote it on the docket sheet, the order would read 'Sentence is to begin immediately.' That would mean it would still run at the end of the other term. Didn't I say that, for the record that it would not be a concurrent sentence--would not be?'

'A. I believe you said that but you did say that it would start immediately and he told me that it would start, as far as he knowed--I asked Mr. Ben Allen about it--he was here in the courtroom--and he told me it would start immediately. I don't know--'

'By the Court: Well, did you have any agreement like that with the District Attorney or Mr. Smith or myself about it being a concurrent sentence or anything?'

'A. No, sir.

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'By the Court: Well, did anybody tell you that I agreed with...