Ex parte Fewell, 6 Div. 607

• Decision Date: 14 January 1954
• Docket Number: 6 Div. 607
• Parties: Ex parte FEWELL.
• Court: Alabama Supreme Court

Page 558

73 So.2d 558

261 Ala. 246

Ex parte FEWELL.

6 Div. 607.

Supreme Court of Alabama.

Jan. 14, 1954.

Rehearing Denied June 30, 1954.

Winton G. Wilson, Birmingham, for petitioner.

Si Garrett, Atty. Gen., Robt. Straub, Asst. Atty. Gen., for the State.

CLAYTON, Justice.

The facts in this case, as disclosed by the evidence before the trial court, are set out in clear detail in Fewell v. State, Ala.Sup., 66 So.2d 771, and will not be repeated here. Rehearing was denied in that case on August 6, 1953, and the appellant, on August 13, 1953, filed petition in this court for leave to file in the circuit court of Jefferson County, Alabama, a petition for writ of error coram nobis.

As the basis of his petition, the petitioner alleges fraud in the procurement of a judgment of conviction against him, practiced by the offices of the solicitor and the sheriff of Jefferson County, Alabama, in the suppression of evidence. First, he seeks to be allowed to attack the voluntariness of the confessions and statements which were introduced in evidence against him on his trial. He seeks to show threats, coercive statements and inducements made to him by Deputy Sheriff B. M. Dinken and Captain O'Connell of the United States Army, at Fort Hood, Texas, from April 10 to April 15, 1952. He would use as witnesses to accomplish this purpose, himself and Mr. Clancey Lake, both of whom took the stand for the same purpose on the original trial. However, at that time they did not have before them certain comprehensive written notes taken by Mr. Lake who was a newspaper representative present at all times when the appellant was questioned in Texas before being returned to Alabama. Mr. Lake had voluntarily given these notes to the solicitor of the Circuit Court of Jefferson County, Alabama, on April 20, 1952, and petitioner charges the solicitor with fraud in concealing the contents of these notes from the court and defendant's counsel until after the trial. Mr. Lake did have what he termed 'running notes', which he referred to while on the witness stand. The substance of petitioner's contention is that both the petitioner and Mr. Lake would be able to testify more strongly against the voluntariness of the confessions and statements after having read Mr. Lake's comprehensive notes which were returned to him by the officers subsequent to the trial. Petitioner attributes his failure to testify more effectively, as to alleged threats and inducements used to procure his statements and confessions, to his having been upset preceding the trial, and that he did not recollect them.

These notes are attached as an exhibit to the petition. Parts of them, which defendant claims constituted inducements to the making of the later statements and confessions by petitioner, referred to his mother's being 'on the cold steel', and that 'I will haunt you as long as you are in the Army and Mr. Dinken will be on the outside * * *.', were included in the testimony of the defendant and Mr. Lake on the trial. Mr. Lake's comprehensive notes also show that immediately before the accused made a statement, while in Texas, that Captain O'Connell read to him extracts from Army Regulations which explained his right to make or not to make any statement, and the effect of such statement, if made. The statement made by defendant at the conclusion of his being questioned in Texas was not a confession, but rather a denial of guilt on his part. It was held in the opinion of this court on petitioner's appeal that the unsuccessful attempt to obtain a confession from him in Texas did not render his subsequent confessions inadmissible. Fewell v. State, supra; McAdory v. State, 62 Ala. 154; Levison v. State, 54 Ala. 520.

'* * * the writ of error coram nobis does not lie to enable accused to question the merits of the case, hence does not lie to correct an issue of fact which has been adjudicated, even though wrongly determined.' * * *' Johnson v. Williams, 244 Ala. 391, 394, 395, 13 So.2d 683, 686; 24 C.J.S., Criminal Law, § 1606, page 149.

Petitioner cites in brief, People v. Long, 346 Ill. 646, 178 N.E. 918; and People v. Crooks, 326 Ill. 266, 157 N.E. 218, in support of his claim that the writ of error coram nobis will lie to correct some excusable mistake or ignorance of accused where without negligence on his part he has been deprived of a substantial defense which he could have used at his trial. With this assertion, we, in the instant case, do not have occasion to disagree, for the reason that in the present situation he does not seek to assert a defense of which he was deprived at his trial. He seeks to assert exactly the same defense by exactly the same witnesses, but says that their recollections have now been refreshed and they will make stouter witnesses on a second attempt. We do not feel that the interests of justice require that the petitioner should again be allowed to attack the voluntariness of his statements and his confessions, on the basis of the idea that he and his witness did not sufficiently remember on his trial, alleged threats and inducements asserted in the petition to have been made in Texas in order to procure the statements and confessions. In arriving at this conclusion we have carefully read the testimony of the defendant and of the witness Lake on the trial, as well as the comprehensive notes of Mr. Lake attached to the petition.

The petition, as a second proposition, alleges that one John Hamaker, who is now an inmate at Bryce Hospital, had confessed some time before the trial of petitioner that he, Hamaker, killed Phyllis Dean Carver, the person for whose murder, the petitioner was convicted. He further asserts that the fact of Hamaker's confession was concealed by the sheriff's office until after the trial of Fewell, the petitioner. Following the principle laid down in Ex parte Burns, 247 Ala. 98, 22 So.2d 517, that the supreme court takes judicial knowledge of its own records, we have compared the confession of Hamaker with the testimony of the State toxicologist, Dr. Brooks, on the trial of Fewell in regard to the condition of the victim's body and the location of the wounds thereon, and also in regard to the condition of the clothing worn by the victim. There is much disparity between them. We have also compared Hamaker's confession, made in Virginia, with a subsequent one made to Boley and Ray while in jail at Bessemer and attached to the petition in this cause, and there is further disparity between them. On this account, it is understandable and reasonable that the prosecuting officers should have proceeded with the prosecution against Fewell rather than against Hamaker. Hamaker's...