Freeland v. State, 1 Div. 149
Decision Date | 11 October 1966 |
Docket Number | 1 Div. 149 |
Citation | 43 Ala.App. 406,191 So.2d 245 |
Parties | Charles David FREELAND v. STATE. |
Court | Alabama Court of Appeals |
W. Boyd Reeves, Mobile, for appellant.
Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
This appeal from denial of writ of error coram nobis was submitted here June 2, 1966, on written argument.
Freeland's petition for the writ was defective in that it failed to aver when and for what Freeland was originally convicted.
His complaint was (1) that a policeman without a warrant therefor searched a car owned by Robert Lee Woods seizing a shotgun therefrom; and (2) that city detectives 'forced (him) under duress to make a statement * * * which stated petitioner was guilty of an alleged robbery of Spur Service Station * * *.'
After counsel had been appointed for him by the circuit court, an amendment to the petition for writ of error of coram nobis was filed. This added: (3) that on interrogation by the police petitioner was advised that if he did not sign a confession he would get a lengthy sentence whereas should he sign he would receive a minimum term; (4) that following his arrest he was held at the Mobile City Jail and was not permitted to contact legal counsel; and (5) that without counsel and without being advised of his constitutional rights he was compelled to stand in a line up for identification purposes.
On the cause coming on for hearing, Freeland refused to take the stand and sought to submit his case on the petition and amendments as verified.
The transcript of evidence shows the following as to this point:
On appeal counsel relies on language used by the writer in Duncan v. State, 42 Ala.App. 111, 154 So.2d 302; Willis v. State, 42 Ala.App. 85, 152 So.2d 883, and Ex parte Nations, 42 Ala.App. 137, 155 So.2d 320. The Duncan opinion states in part:
'Oral testimony on a coram nobis hearing should only be take where the trial judge to whom the petition with the accompanying affidavits has been submitted considers further proof necessary in the interest of preventing a miscarriage of justice to the extent that coram nobis review permits. * * *'
Treating Freeland's sworn allegations in his pleadings as unilateral depositions, we think the trial judge was eminently correct in dismissing the petition when Freeland refused to go forward with more detailed proof. To have granted the writ on the vague conclusionary allegations would have been a miscarriage of justice.
We have tested these allegations as though under the negative pregnant rule. That is, basically Freeland must answer why the original judgment of conviction constitutes a fraud on the court. Allen v. State, 42 Ala.App. 9, 150 So.2d 399; Woodard v. State, 42 Ala.App. 552, 171 So.2d 462.
Thus, illustratively, the first allegation fails to state (1) who was in control of the car--so as to show standing to resist an illegal search--(2) where in the car the shot gun was when seized--so as to show whether or not it was in open view (Thompson v. State, 41 Ala.App. 353, 132 So.2d 386; Kelley v. State, 39 Ala.App. 572, 105 So.2d 687; Smith v. State, 41 Ala.App. 528, 138 So.2d 474; Williams v. State, 43 Ala.App. 343, 190 So.2d 556; (Sept. 20, 1966); Sheridan v. State, 43 Ala.App. 239, 187 So.2d 294 (hn. 2). Without proof on these points, the claim of an illegal search fails.
Also, see Adams v. State, 42 Ala.App. 664, 177 So.2d 922, as to waiver.
Again, Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, is not brought into play because there is no claim that Freeland requested counsel or was not advised of his right to...
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Nguyen v. State, 1 Div. 45
... ... at 1832. Furthermore, being placed in a lineup does not equate with being compelled to testify against oneself. Freeland v. State, 43 Ala.App. 406, 191 So.2d 245, 249 (1966). For these reasons, the Fifth Amendment offers no protection against compulsion to submit to ... ...
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Brown v. State
...So.2d 862; Woodard v. State, 42 Ala.App. 552, 171 So.2d 462 (hn. 5-8); Ex parte Davis, 43 Ala.App. 188, 185 So.2d 417; Freeland v. State, 43 Ala.App. 406, 191 So.2d 245 (hn. 7). See also Wiman v. Argo, 5 Cir., 308 F.2d 674, and Ard v. State, 42 Ala.App. 505, 169 So.2d "After a trial where t......
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Autrey v. State
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Argo v. State, 6 Div. 219
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