Ex parte Powell, 6 Div. 637

• Decision Date: 13 May 1958
• Docket Number: 6 Div. 637
• Citation: 39 Ala.App. 423,102 So.2d 923
• Parties: Ex parte William K. POWELL.
• Court: Alabama Court of Appeals

Page 923

102 So.2d 923

39 Ala.App. 423

Ex parte William K. POWELL.

6 Div. 637.

Court of Appeals of Alabama.

May 13, 1958.

William K. Powell, pro se.

John Patterson, Atty. Gen., and Edmon L. Rinehart, Asst. Atty. Gen., for the State.

CATES, Judge.

This is a request by Powell to let him file a petition with the Circuit Court of Jefferson County for a writ of error coram nobis.

Powell alleges that during his trial and on former appeal his substantial rights were violated because:----

1) he is now imprisoned for a robbery he did not commit and his only hope is by Federal intervention 2) he has exhausted himself, if not his remedies, by motion for new trial, appeal here affirmed without opinion June 19, 1956, and not reported, a request to the Attorney General, by seeking habeas corpus in the Federal District Court, thence by appeal to the Supreme Court of the United States (Powell v. Burford, 355 U.S. 888, 78 S.Ct. 272, 2 L.Ed.2d 188), but all this, he correctly points out, is without prejudice to our review of this petition so far as coram nobis extends;

3) (a) the Solicitor had no right to switch Powell's trial from Judge Wheeler to Judge King, since Judge Wheeler had theretofore ordered an alienist, Dr. Kay, to examine Powell and report on his sanity;

(b) subsidiary to this ground, Powell alleges that he was without counsel until after arraignment, except an attorney employed by his mother solely for the purpose of securing information on his competency from various Veterans Hospitals and to establish Powell's unfitness to plead;

4) (a) 'contrary to the * * * transcript * * * I was not * * * in open court at each and every stage * * * for I was not present when Judge Wheeler directed the court order be issued nor when it was requested * * *';

(b) 'I was not appointed counsel by the court until after I had been ordered by the court to make my plea following reading of my indictment * * *';

5) 'I was denied a preliminary hearing * * *';

6) 'I was not given a fair and impartial trial because * * * the prosecution was permitted * * * to give to my jury as evidence against me--a gun, bullets and blackjack. Those articles had never been in my possession * * *':

7) [This complains that allowing a conviction of the lesser included crime of larceny under a robbery indictment is discrimination, since his apparent accomplice who turned State's evidence was allowed to plead guilty to larceny;]

8) 'coercion, both physical and mental, by police authority prior to my trial * * * not sufficient to make me confess or plead guilty * * * nevertheless did succeed in suppressing my intention to take the witness stand * * *';

9) 'my * * * attorneys were not permitted * * * to argue the credibility of James R. Hatt * * *';

10) 'I was not appointed competent and able counsel * * *';

11) 'the prosecution suppressed vital evidence * * *';

12) venue should have been Shelby County.

We have examined the record of Powell's appeal to this court, which was from a conviction of robbery, wherein the judgment of guilt pronounced by the Jefferson Circuit Court was affirmed.

No transcript of the evidence was filed, so that the record consisted of only the indictment, a minute entry of an order that Dr. Kay examine Powell (see below), the arraignment, minute entries of orders setting dates for trial, the judgment entry, the defendant's requested charges, both given and refused, a motion for a new trial, and the certificate of the circuit clerk.

No question is presented under the principle of Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055.

In the first place, the writ of error coram nobis petition is concerned only with questions of fact. In the second place, Powell made no application at the time of his appeal from conviction to be allowed to proceed in forma pauperis. We do not consider that the present application would permit of any question coming under the influence of the Griffin rule. The Court of Appeals of Maryland, in Cooper v. Warden 214 Md. 629, 136 A.2d 367, 369, on treating an appeal from an application for a writ of habeas corpus, has said:

'* * * On the allegations of his petition and the supplement thereto--and even of his brief in this Court as well--we find no clear allegations of any denial of supposed rights under Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, and we do not undertake to pass upon any such matters on this record.'

See also People v. Brown, 3 A.D.2d 696, 158 N.Y.S.2d 1002.

Moreover, Powell has not shown here any question of fact which he seeks to have reviewed that would, if established in his favor, produce a different result from that which obtained on his original trial. Hence, the observation of the Kentucky Court of Appeals in Moy v. Bradley, Ky., 306 S.W.2d 296, 297, would be pertinent were the Griffin case involved here:

'* * * We do not construe the Griffin case to mean that every person convicted of a felony, whether affluent or impoverished, who has not appealed his conviction, may subsequently have his conviction reviewed by an appellate court in an extraordinary proceeding without specifying sound legal reasons why his conviction should be reviewed. For us to conclude otherwise would disrupt the orderly administration of the criminal law, would place a tremendous additional burden on appellate courts, and would cause an unjustified expenditure of public funds to finance possibly frivolous appeals of indigent prisoners. * * *'

The...