Ex parte Burns

• Decision Date: 06 June 1945
• Docket Number: 6 Div. 369.
• Citation: 22 So.2d 517,247 Ala. 98
• Parties: Ex parte BURNS.
• Court: Alabama Supreme Court

22 So.2d 517

247 Ala. 98

Ex parte BURNS.

6 Div. 369.

Supreme Court of Alabama

June 6, 1945

Rehearing Denied June 23, 1945.

Horace C. Alford, of Birmingham, for petitioner.

Wm N. McQueen, Acting Atty. Gen., and John O. Harris, Asst Atty. Gen., for the State.

PER CURIAM.

The petitioner, Elbert J. Burns, was tried and convicted of murder in the first degree and received the death penalty. Burns v. State, Ala.Sup., 19 So.2d 450. Application for rehearing was overruled by this court and subsequently petition for certiorari was denied by the Supreme Court of the United States. 65 S.Ct. 589. The present petition to this court is for the purpose of getting this court to enter an order granting petitioner the right to file a petition in the Circuit Court of the Tenth Judicial Circuit of Alabama for a writ of error coram nobis. In substance the petition is based on allegations that the conviction of petitioner was obtained on the perjured testimony of Lola Burns and Charlie Odiorne and that such perjured testimony was knowingly used by the law enforcement officers of the State of Alabama. The petition is further based on the alleged violation of petitioner's constitutional rights in the selection of the jury.

So far as the contention with reference to the method of selecting the jury is concerned, comment by us is unnecessary except to point out that this insistence was passed upon and denied by the Supreme Court of the United States in this case when it denied certiorari. Burns v. State, Ala.Sup., 19 So.2d 450, 460. See also Morris v. State, 234 Ala 520, 175 So. 283; Id., 302 U.S. 642, 58 S.Ct. 48, 82 L.Ed 499, rehearing denied 302 U.S. 778, 58 S.Ct. 263, 82 L.Ed. 602; Dyer v. State, 241 Ala. 679, 4 So.2d 311; Dixon v. State, 27 Ala.App. 64, 167 So. 340, certiorari denied 232 Ala. 150, 167 So. 349.

However, if the basis of the conviction of petitioner was perjured testimony which was knowingly used by the prosecuting authorities in order to obtain that conviction, then petitioner was not accorded the due process to which he is entitled under the Fourteenth Amendment of the Constitution of the United States. Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406. This court has recognized the common-law writ of error coram nobis as the appropriate remedy to be followed in such a situation. Johnson v. Williams, 244 Ala. 391, 13 So.2d 683. The procedure, accordingly, in the present instance is proper.

But there are certain requirements which must be met before we will grant the unusual relief here sought. In this connection we have said: 'We recorgnize in this State, as does the Supreme Court of Florida (Hysler v. State, 146 Fla. 593, 1 So.2d 628), that the common law writ of error coram nobis is available in such instances and is the appropriate remedy to be followed. See 24 C.J.S., Criminal Law, § 1606. The rule in that State, which we think is just and proper, and is here adopted, calls for a petition to this Court, when the judgment of conviction has been here affirmed, for leave to petition the circuit court where the conviction was obtained for a writ of error coram nobis to review such judgment. Such application should make an adequate showing of the substantiality of the petitioner's claim to the satisfaction of this Court. A mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of the specific facts relied upon, and not merely conclusions as to the nature and effect of such facts. The proof must enable this Court to ascertain whether under settled principles pertaining to such writ the facts alleged would afford at least 'prima facie just ground for an application to the lower court for a writ of error coram nobis.' And in the exercise of our discretion in matters of this character, this Court should look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof.' Johnson v. Williams, 244 Ala. 391, 13 So.2d 683, 686.

We will look to the petition, in the light of the records of this court, to see if it meets the requirements of the foregoing authority. Are the allegations of the petition reasonable and what is the probability of their truth? We take judicial knowledge of the records of this court. And so we know that fundamentally petitioner was convicted on the testimony of his accomplice, Charlie Odiorne, and the evidence offered in corroboration of such testimony. The testimony of Lola Burns was only a part of the corroborating testimony. Reference to our opinion in Burns v. State, supra will show the range and strength of the corroborating testimony. We need not set it out here in detail. Suffice it to say that it not only fortifies and...