Ex parte Aaron

• Decision Date: 20 June 1963
• Docket Number: 3 Div. 40
• Citation: 275 Ala. 377,155 So.2d 334
• Parties: Ex parte Drewey AARON, Jr.
• Court: Alabama Supreme Court

Page 334

155 So.2d 334

275 Ala. 377

Ex parte Drewey AARON, Jr.

3 Div. 40.

Supreme Court of Alabama.

June 20, 1963.

Solomon S. Seay, Jr., Montgomery, for petitioner.

Richmond M. Flowers, Atty. Gen., Geo. D. Mentz, Asst. Atty. Gen., Wm. F. Thetford, Circuit Solicitor and Maury D. Smith, Deputy Solicitor, Montgomery, for the State.

GOODWYN, Justice.

Petition of Drewey Aaron, Jr., a Negro, for leave to file in the circuit of Montgomery County a petition for a writ of error coram nobis to review and vacate a judgment of that court sentencing him to death for the rape of a white woman.

On July 17, 1959, Aaron was indicted for this offense by a Montgomery County grand jury. His trial by a petit jury resulted in a verdict of guilty, with death being fixed as his punishment. Judgment thereon was rendered on July 29, 1959. Aaron's motion for a new trial was overruled on September 21, 1959. On appeal here, the judgment was reversed on July 14, 1960, and the cause remanded to the circuit court for another trial. Aaron v. State, 271 Ala. 70, 122 So.2d 360.

On Aaron's retrial the verdict was the same as on the first trial, and judgment thereon was rendered on November 29, 1960. His motion for a new trial was overruled on January 24, 1961. On appeal here, the judgment was affirmed on September 28, 1961, and Aaron's application for rehearing was denied on April 5, 1962. Aaron v. State, 273 Ala. 337, 139 So.2d 309. His petition fror certiorari was denied by the Supreme Court of the United States on October 8, 1962, Aaron, petitioner, v. Alabama, 371 U.S. 846, 83 S.Ct. 81, 9 L.Ed.2d 82(1962).

On December 3, 1962, the original petition now before us was filed here. An amended petition was filed on January 14, 1963, pursuant to an extension of time granted at Aaron's request. The propriety of coram nobis is based on allegations that both the grand jury and the trial jury were illegally constituted, thus denying to petitioner 'the due process of law and the equal protection of the laws guaranteed by the Constitution and laws of the State of Alabama and of the United States.'

Throughout both trials petitioner was represented by two Negro attorneys, neither of whom was court appointed and one of whom was a practicing lawyer in Montgomery County, where the trials were held. The records of the two trials do not disclose the source of their employment, but there is no indication or suggestion that their representation of petitioner was lacking in diligence on their part in any way, nor that petitioner was other than completely satisfied with their services as his attorneys. Indeed, they were successful in securing a reversal of petitioner's first conviction, and the record in the second trial discloses their able representation of petitioner.

At no time, and in no way, prior to the filing of the present petition, did the petitioner or his counsel question the composition of the grand jury or either of the petit juries. In fact, according to the affidavit of the trial judge incorporated in the motion to dismiss the petition, the defendant's attorneys were asked by the judge, prior to defendant's arraignment, 'in the presence of the defendant, whether they intended to file motions or pleas attacking either the Grand Jury or the Petit Jury venire because of the racial makeup of such Grand Jury or Petit Jury venire.' and that the attorneys, in defendant's presence, advised the judge 'that they did not intend to attack either the Grand Jury or the Petit Jury Venire on racial grounds.' In this connection, the trial judge's affidavit also contains the following statements, viz: 'I made this inquiry of the defendant and his attorneys because I am a member of the Montgomery County Board of Jury Supervisors and would have had to recuse myself should an attack be made on the jury system because of racial discrimination. The inquiry which I directed to the defendant's attorneys and the defendant was made in open Court at the conclusion of rulings on motions, appearing in the records of the first Aaron trial, and prior to actual arraignment.'

On authority of Ex parte Seals, 271 Ala. 622, 126 So.2d 474, cert. den. 366 U.S. 954, 81 S.Ct. 1909, 6 L.Ed.2d 1246, the petition is due to be denied.

Petition denied.

LIVINGSTON, C. J., and MERRILL and COLEMAN, JJ., concur.

LAWSON and SIMPSON, JJ., dissent.

MERRILL, Justice (concurring).

These remarks contain additional reasons for my concurrence in the foregoing opinion.

Petitioner alleges that members of the Negro race are systematically excluded from the jury in Montgomery County and then, to excuse the failure to raise the point earlier, makes this statement:

'Facts on which this petition are based were not known to petitioner at the time of trial, nor could they with reasonable diligence have been ascertained. Said facts however, if known in season, whould have prevented rendition of the judgment challenged.'

The petition is signed and sworn to by the defendant.

This is not sufficient in this case. Lawyers are hired by defendants, or appointed by the court when they are unable to employ them, in order that they might represent the defendant and protect the client's rights, especially as to those legal matters and rights of which the client has no knowledge or experience. Most any defendant could make an affidavit that he did not know the legal effect of many things that went on at his trial, but that cannot mean that knowledge is not imputed to him.

An attorney is the duly authorized agent of his client and his acts are those of his client. The client is, therefore, bound by the acts of his attorney in the course of legal proceedings in the absence of fraud or collusion, McWilliams v. Martin, 237 Ala. 624, 188 So. 677; and knowledge of the attorney is imputed to the client, notwithstanding the client had no actual knowledge or notice of the facts and circumstances. Silvey & Co. v. Cook, 191 Ala. 228, 68 So. 37. The courts have made some exceptions to these rules, but as is subsequently shown in this opinion, the leading case on the question here involved, United States ex rel. Goldsby v. Harpole, 5 Cir., 263 F.2d 71, is quite different from the instant case.

As stated in the opinion of the court, the petitioner was represented by a Negro lawyer of his own choosing in his first trial, on the appeal here when judgment of conviction was reversed, at the second trial, on the second appeal when judgment was affirmed, on his petition for certiorari to the United States Supreme Court, and by the same lawyer in this proceeding. This lawyer has been in the active practice of the law in Montgomery County, and it is beyond the realm of speculation that any active lawyer, practicing law and residing in Montgomery, could fail to know that the question of exclusion of Negroes from the juries in Montgomery County has been raised in recent years, and has not been raised successfully.

The Montgomery County Board of Jury Supervisors is different from jury commissions of all the other counties in Alabama. In the other sixty-six counties, the members are appointed by the governor. In Montgomery County, certain officials are members, and the law makes the circuit judges of Montgomery County members of the Board. Therefore, whenever the question of systematic exclusion of Negroes from the jury box is raised, the circuit judges must recuse themselves and either a judge from another county is called in to try the case, or the parties agree on a member of the Montgomery bar to act as special judge for the case.

The attendant publicity, especially among the local lawyers, renders it inconceivable that any qualified and active local attorney would not know of the raising of the question because a new judge would have to be selected and serve during the trial.

One of the cases mentioned in the record before us is worthy of mention. The defendant, indicted for rape, was represented by white lawyers. They raised the question of systematic exclusion of Negroes from the juries at the proper time, causing the recusal of the elected circuit judge and the appointment of a member of the local bar upon whom all parties concerned had agreed. The question was tried in circuit court, was treated here on appeal, and was argued in the United States Supreme Court where the judgment of conviction was reversed. See Reeves v. State, 260 Ala. 66, 68 So.2d 14, reversed 348 U.S. 891, 75 S.Ct. 214, 99 L.Ed. 700.

The case was retried in circuit court, the same question was raised, this time by Negro attorneys, who were then representing the defendant; it was treated again on appeal to this court where the judgment of conviction was again affirmed; certiorari was granted and then dismissed by the Federal Supreme Court. See Reeves v. State, 264 Ala. 476, 88 So.2d 561, certiorari granted, 352 U.S. 965, 77 S.Ct. 373, 1 L.Ed.2d 321, certiorari dismissed, 355 U.S. 368, 78 S.Ct. 363, 2 L.Ed.2d 352.

The record also shows that another unsuccessful attack, raising the same question, was made in 1960 in a case in which the defendant, Martin Luther King, Jr., was acquitted by the jury. The record also shows that in 1961, the lawyer who represents the petitioner in the instant case raised the same question in a case involving a Negro client.

It cannot be said that the petitioner or his attorney did not have knowledge of the question or that it had been raised and litigated in cases previous to the instant case.

The record also contains the...