Ex parte Taylor

• Decision Date: 13 November 1947
• Docket Number: 1 Div. 308.
• Citation: 249 Ala. 667,32 So.2d 659
• Court: Alabama Supreme Court
• Parties: Ex parte TAYLOR. TAYLOR v. STATE.

32 So.2d 659

249 Ala. 667

Ex parte TAYLOR.

TAYLOR v. STATE.

1 Div. 308.

Supreme Court of Alabama

November 13, 1947

Rehearing Denied Dec. 4, 1947.

Nesbitt Elmore, of Montgomery, for petitioner.

A. A. Carmichael, Atty. Gen., and Bernard F. Sykes Asst. Atty. Gen., for the State.

GARDNER Chief Justice.

This is a petition for the issuance of the common-law writ of error coram nobis; the case being originally assigned to Mr Justice Brown for study and preparation of an opinion.

Upon consideration of the cause in consultation, the members of the court were not in agreement with the views entertained by Mr. Justice Brown and of consequence a brief statement of the views of the majority is here appropriate.

The averments of the petition are set out with much detail in what is now the dissenting view of Justice Brown, and need no repetition here. The substance of the petition is that the confessions obtained from the defendant, Samuel Taylor, were involuntary as a result of threats and physical violence from which he was placed in great fear and which fear continued up to and through the trial of the cause. This petition is sworn to and in support thereof are the affidavits of one Johnnie Kimbrough, now twenty-two years of age, serving a ten-year sentence for robbery at Kilby Prison in Montgomery; Lawrence H. Franklin, Jr., now twenty-one years of age, who was incarcerated in the jail in Prichard at the time this defendant was arrested; and Calvin Jones, now nineteen years of age, and who was also under arrest and so incarcerated at the time of defendant's imprisonment. Upon this petition and these affidavits the court is asked to grant the writ of error coram nobis based solely upon the charge that the defendant was under duress at the time the confessions were made.

It appears that presumably out of due caution the authorities had soon after his arrest and immediately following his confession on July 3 had pictures of the defendant taken in a nude condition which are here exhibited, which disclose no indications on the body of any physical violence as set forth in the petition. But under the authorities this court is not to determine the truth of the allegations of the petition and we lay no particular stress upon the photographs here exhibited.

In passing upon the petition for writ of error coram nobis this court is in the exercise of a wise discretion and must look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof, and grant leave only when it appears that the proposed attack on the judgment is meritorious. 24 C.J.S., Criminal Law, § 1606.

We are fully mindful of petitioner's rights under the due process clause of the Federal Constitution and the responsibility resting upon this court in cases of this character. We not only are mindful of responsibility so far as this defendant is concerned, but also feel like responsibility to society in the enforcement of the criminal laws of our state. In Johnson v. Williams, 244 Ala. 391, 13 So.2d 683, 687, the petition sought for the first time to raise the question as to the regularity of the jury venire. The question was not presented upon the trial of the case. The holding there was that the objection came too late, and numerous authorities are cited to the effect that one may waive, and does waive his constitutional right, if he fails to assert or claim it at the appropriate time and place and in accordance to the established course of procedure. We therein further observed: 'We have been cited to no case, either State or Federal, holding to a contrary doctrine. Indeed, such a principle, once recognized, would utterly destroy the doctrine of res adjudicata so far as criminal cases are concerned, reduce the trial of a defendant charged with crime to a mere game of chance, and make a mockery of the courts.'

Upon the trial of this cause the petition admits that the defendant was represented by able counsel. Upon a consideration of this cause in this court, as found reported in Taylor v. State, Ala.Sup., 30 So.2d 256, the counsel appointed by the court for the defense diligently presented the questions raised in the record both by oral argument and in a full and complete brief, and a reading of the record, of which, of course, we take full notice here (Johnson v. Williams, supra), demonstrates that the defendant was ably represented. The question of confessions was duly treated. There were two or three of these confessions made at different times, one of which was signed by the defendant. Not only so, but the defendant having before him three or four girls pointed out this fourteen year old victim of his crime as the one whom he had assaulted. The question of the voluntary character of the confession was duly considered and treated in the opinion on former appeal. Nor did the record contain the slightest indication that the defendant, a Negro twenty years of age, was ignorant and in any manner subnormal.

The offense was committed in April, 1946, and defendant arrested the latter part of June of that year and on July 3, 1946, made his first confession. Later another confession was made before the Mayor of Prichard and others, in which he answered in detail the numerous questions asked by the solicitor. As pointed out on the former appeal this confession was also preceded by proof of its voluntary character. The record supports the holding as declared in the appeal that there existed not the slightest indication upon the trial of his case that there was a single threat offered or that he in any manner was under any character of duress upon the making of any of these confessions.

But in this case, as in the case of Johnson v. Williams, supra, defendant's conviction was not rested alone upon a confession. There was ample proof to sustain his conviction regardless of the confession. The fourteen year old girl positively identified him upon his arrest and upon the trial of the cause. She stated she knew he was the man. True she had mistakenly identified another Negro, but she pointed out the differences and was most positive on the trial in her statement that this defendant was the perpetrator of the crime. Not only so, there was clothing identified as that of the defendant and worn on that occasion. The trousers worn by defendant at the time were examined by the toxicologist, who testified to discovery of blood stains, as well as semen stains. Upon these matters there was no dispute.

We recognize that the defendant was in the exercise of a constitutional right in declining to take the stand and subject himself to cross-examination as a witness. But, nevertheless, in consideration of this petition we cannot close our minds to the fact that the defendant not only made no denial of his guilt but offered absolutely no proof as to his whereabouts when this crime was committed. And we should bear in mind the wellestablished rule in considering petitions of this character, the writ is not intended to relieve a party from his own negligence, and that facts known to the accused at the time of trial, and not brought to the court's attention through his negligence, afford no ground for relief. 24 C.J.S., Criminal Law, § 1606. Petitioner now asks this court to permit the lower court to reopen this cause upon the grounds that his confessions were involuntary--a confession obtained on July 3, 1946, his trial not until October 29, 1946. He was represented, as he admits and as this court knows, by able counsel, and yet he states in his petition that he told his counsel that the confessions were not involuntarily obtained. To excuse this conduct on his part he asks this court to believe that he so stated to his counsel because of fear generated by treatment he had received several months before, on July 3, 1946. Petitioner was a Negro twenty years of age. The girl a white girl fourteen years of age. The trial was conducted with much care. There is nothing in the record on former appeal to indicate the slightest appeal to prejudice, nor was a single untoward incident recorded. We think it is asking entirely too much of the court to believe that this defendant, in the secrecy of consultation with his own able counsel, would say to counsel in substance that there was nothing upon which to base an objection to his confessions, solely because he was under fear generated by treatment which he claims was accorded him on July 3, nearly four months previous.

As we have observed, the court should look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof. And it must also be made to appear that the proposed attack on the judgment of conviction is meritorious. The writ was not designed to enable the guilty to escape punishment. 24 C.J.S., Criminal Law, § 1606. As we have observed there was ample evidence, aside from the confessions, upon which a verdict of guilt could well be rested, and the averment of the petition that his conviction was rested upon the confessions is unsustained by the record. The court should also bear in mind this writ is only due to be granted when it is made clearly to appear that petitioner has a valid defense. 24 C.J.S., Criminal Law, § 1606. Giving due consideration to petitioner's constitutional right not to testify and upon the trial make a denial of his guilt, we nevertheless are impressed that in the carefully prepared petition here presented there appears no positive statement of denial of guilt or present protestation of innocence.

But we forego further discussion. Upon due consideration we conclude that the averments of the petition are unreasonable and that there is no probability of truth contained therein, and that the proposed attack...