Ex parte Hamilton

Citation122 So.2d 602,271 Ala. 88
Decision Date15 August 1960
Docket Number6 Div. 604
PartiesEx parte Charles Clarence HAMILTON. In re Charles Clarence HAMILTON v. STATE of Alabama.
CourtSupreme Court of Alabama

Orzell Billingsley, Jr., and Peter A. Hall, Birmingham, for petitioner.

MacDonald Gallion, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., for the State.

LAWSON, Justice.

Charles Clarence Hamilton was convicted in the Circuit Court of Jefferson County of the offense of breaking and entering an inhabited dwelling in the nighttime with intent to ravish. § 85, Title 14, Code 1940. We affirmed. Hamilton v. State, Ala., 116 So.2d 906. Writ of certiorari was denied by the Supreme Court of the United States on June 27, 1960. Hamilton v. State of Alabama, 80 S.Ct. 1638, 4 L.Ed.2d 1737.

Hamilton has filed in this court a petition for leave to file an application for writ of error coram nobis in the Circuit Court of Jefferson County. Such is the proper procedure in view of the fact that the judgment of the Circuit Court of Jefferson County was affirmed here. Taylor v. State of Alabama, 335 U.S. 252, 68 S.Ct. 1415, 92 L.Ed. 1935; Ex parte Williams, 268 Ala. 535, 108 So.2d 454, and cases cited.

In the petition presently before us, Hamilton asserts that the judgment under which he is being held is void in that his rights under 'the laws and Constitution of the State of Alabama and the Fourteenth Amendment to the Constitution of the United States of America' were violated in that he was not represented by counsel at the time he was arraigned and pleaded not guilty to the indictment upon which he was tried and convicted.

The petition, including the exhibits, the affidavit in support of the petition, the State's answer and affidavits supporting it show these circumstances:

Hamilton was first indicted on November 9, 1956. The indictment contained one count which charged burglary of an inhabited dwelling in the nighttime with intent to steal. He was arraigned on that indictment on January 4, 1957. He pleaded not guilty. He was represented by court-appointed counsel at arraignment when the plea was entered.

A second indictment against Hamilton was returned on February 12, 1957. It contained two counts. One count charged burglary of an inhabited dwelling in the nighttime with intent to steal. The other count charged burglary of an inhabited dwelling in the nighttime with intent to ravish.

Both indictments related to the same incident, that is, to the breaking and entering of the inhabited dwelling of one Jacob C. Milko during the early hours of October 13, 1956.

The lawyer who had been appointed to defend Hamilton against the first indictment was advised by the State's prosecutor that the second indictment had been returned and that Hamilton would be 'rearraigned' and the case set for trial.

Hamilton was arraigned on the second indictment on March 1, 1957. He pleaded not guilty. Neither the lawyer who had been appointed to defend him against the first indictment nor any other lawyer appeared on his behalf at arraignment. The court did not appoint a lawyer to defend him against the second indictment until March 4, 1957, when the same lawyer was appointed who had been appointed to defend him against the first indictment.

Hamilton was brought to trial on the second indictment on April 23, 1957, when a jury found him guilty under the second count of the indictment and inflicted the death penalty. The first indictment was 'nolle prossed' on April 24, 1957.

We hold that it is made to appear in this proceeding that Hamilton was not represented by counsel at the time he was arraigned on the indictment on which he was subsequently tried and convicted. We are not here controlled by the minute and judgment entries, as was the situation on appeal from the judgment of conviction. Hamilton v. State, Ala., 116 So.2d 906.

Section 318, Title 15, Code 1940, as amended, provides in pertinent parts as follows: 'When any person indicted for a capital offense is without counsel and the trial judge, after due investigation, is satisfied that the defendant is unable to employ counsel, the court must appoint counsel for him not exceeding two, who must be allowed access to him, if confined, at all reasonable hours, * * *.' We think this section places upon the trial court the responsibility of seeing that an accused indicted for a capital offense has a lawyer before he is arraigned and called upon to plead to the indictment. We have found no Alabama case expressly so holding, but this has been the almost uniform practice of the circuit courts of this state for many years and the very purpose of the statute seems to dictate such action.

In Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, the Supreme Court of the United States held that in a capital case, where the defendant is unable to employ counsel, and is incapable of adequately making his own defense because of ignorance, feeble-mindedness, illiteracy or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that such duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case. See Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77; Tomkins v. State of Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407.

The right to counsel is not a right confined to representation during a trial on the merits. Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167.

Hamilton should have been represented by counsel at the time of his arraignment. We construe the petition and the papers filed in support and in opposition thereof to show, as we have indicated above, that he was not so represented.

But does that showing, standing alone, afford prima facie just ground for us to authorize the filing in the lower court of the application for writ of error coram nobis? See Johnson v. Williams, 244 Ala. 391, 13 So.2d 683, where we defined the standards to guide us in determining whether a petition for application to file a writ of error coram nobis in the trial court should be granted here. See also Taylor v. State of Alabama, 335 U.S. 252, 68 S.Ct. 1415, 92 L.Ed. 1935.

We think not and answer the question in the negative.

In a number of Federal Cases where the defendants were entitled to the benefit of counsel, it has been held that there was no abridgment of the right to counsel where the defendant was arraigned before counsel was appointed to represent him and the defendant pleaded not guilty. Even where the defendant pleaded guilty on arraignment the failure to appoint counsel has been said not to have been prejudicial where counsel was appointed immediately after arraignment and full opportunity was given to withdraw the plea or to take whatever steps were necessary or desirable without regard to what previously transpired. Council v. Clemmer, 85 U.S.App.D.C. 74, 177 F.2d 22, and cases cited; Young v. United States, 8 Cir., 228 F.2d 693.

The same rule seems to apply to those states where provision is made for appointment of counsel to represent defendants charged with non-capital offenses.

In Canizio v. People of State of New York, 327 U.S. 82, 66 S.Ct. 452, 90 L.Ed. 545, the Supreme Court of the United States treated the record before it as showing that Canizio was without counsel when he was arraigned and pleaded guilty in a New York court, and that the trial court failed to inform him of his right to counsel but held that this defect was cured by his being represented by counsel before and at sentence. It was observed by the court:

'The attorney could have moved to withdraw the plea of guilty and the County Court of Kings County would have had the power to set aside the plea and let the petitioner stand trial. * * * Petitioner's counsel probably thought it undesirable to do so, because this move might have jeopardized his chances for securing a low sentence. * * * At any rate, whatever the reason petitioner's counsel did not move to withdraw the guilty plea. All of this demonstrated to the statisfaction of the court below even though petitioner may not have had counsel at the beginning, he had counsel in ample time to take advantage of every defense which would have been available to him originally. We think the record shows that petitioner actually had the benefit of counsel. When that counsel took over petitioner's defense he could have raised the question of a defect in the earlier part of the proceedings. Failing to do so when the statute afforded him the opportunity, we cannot say that the court denied petitioner the right to have a trial with the benefit of counsel.' 327 U.S. 85-86, 66 S.Ct. 453, 454.

See Gayes v. State of New York, 332 U.S. 145, 67 S.Ct. 1711, 91 L.Ed. 1962; People v. Dolac, 3 A.D.2d 351, 160 N.Y.S.2d 911; Chandler v. State, 226 Ind. 648, 83 N.E.2d 189; State ex rel. May v. Swenson, 242 Minn. 570, 65 N.W.2d 657. Also see Quicksall v. People of State of Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188.

The rule of the cases which we have cited and quoted from above seems to apply to state capital cases as well.

In the opinion in People v. Moore, 405 Ill. 220, 89 N.E.2d 731, 732, decided by the Supreme Court of Illinois in 1950, it is shown that Moore was indicted for murder. The opinion does not show that murder was a capital offense in Illinois, but the law of that state so provided. Moore was convicted of murder and was sentenced to serve sixty years in prison. He appealed to the Supreme Court of Illinois, claiming that 'his rights under the statute and under section I of the fourteenth amendment to the Federal constitution, and sections 2 and 9 of article II of the Illinois constitution, Smith-Hurd Stats., were violated and because cause the court did not inquire as to whether he was able to employ counsel and did not appoint counsel to...

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7 cases
  • Argo v. State, 6 Div. 219
    • United States
    • Alabama Court of Appeals
    • 17 January 1967
    ... ... , equal protection and due process of law, and that the convictions and sentences are due to be set aside and vacated under the authority of Hamilton v. (State of) Alabama, 368 U.S. 52 (82 S.Ct. 157, 7 L.Ed.2d 114) ... 'On November 24, 1965, the State of Alabama, by and through its Circuit ... Recorded #1 Minute Bk. Vol. 179 Pg. 384.' ...         Coram nobis admits of proof of matters of fact not appearing of record. In Ex parte Hamilton, 271 Ala. 88, 122 So.2d 602, it was held that coram nobis was the remedy to attack lack of counsel at arraignment. The opinion states in ... ...
  • Hamilton v. State of Alabama, 32
    • United States
    • U.S. Supreme Court
    • 13 November 1961
    ... ... People v. Kurant, 331 Ill. 470, 163 N.E. 411. In other States arraignment is not 'a part of the trial' but 'a mere formal preliminary step to an answer or plea.' Ex parte Jeffcoat, 109 Fla. 207, 210, 146 So. 827, 828. An arraignment normally, however, affords an opportunity of the accused to plead, as a condition precedent to a ... ...
  • Powell v. Wiman
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 29 March 1961
    ... ... On the 9th day of January 1961, the Supreme Court of the United States granted certiorari to review that decision. Hamilton v. Alabama, 1961, 364 U.S. 931, 81 S.Ct. 388, 5 L.Ed.2d 364. We do not await the decision of the Supreme Court in that case, and refrain from ...          2 Ex parte Powell, 1959, 361 U.S. 34, 80 S.Ct. 126, 41 L.Ed. 99 ...          3 Alabama Code of 1940, Title 14, Section 415 ...          ... ...
  • Hamilton v. State, 6 Div. 83
    • United States
    • Alabama Supreme Court
    • 13 February 1969
    ... ... This court affirmed the conviction on September 17, 1959, Hamilton v. State, 270 Ala. 184, 116 So.2d 906, cert. denied, 363 U.S. 850, 80 S.Ct. 1638, 4 L.Ed.2d 1737. A petition for leave to file an application for writ of error coram nobis was denied by this court on August 15, 1960, Ex Parte Hamilton, 271 Ala. 88, 122 So.2d 602. The United States Supreme Court granted certiorari, Hamilton v. Alabama, 364 U.S. 931, 81 S.Ct. 388, 5 L.Ed.2d 364, and reversed in 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 ...         [283 Ala. 543] Following this reversal by the U.S. Supreme Court, ... ...
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