Goolsby v. State
Citation | 215 So.2d 598,44 Ala.App. 535 |
Decision Date | 28 November 1967 |
Docket Number | 6 Div. 202 |
Parties | James GOOLSBY v. STATE. |
Court | Alabama Court of Appeals |
Weaver & Herrin, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
The facts in this case show that appellant, Goolsby, was indicted by the Grand Jury in July, 1959, on three counts: Count One, burglary; Count Two, grand larceny; and Count Three, buying, receiving and concealing stolen property. Goolsby, without counsel, entered a plea of guilty and was sentenced to serve ten years in the State penitentiary.
September 7, 1965, the judgment was set aside and appellant was granted a new trial. At the second trial, Goolsby filed three pleas of autrefois acquit, which were overruled.
The Attorney General, in brief, gives the following statement of facts:
'The next day the appellant and Lucas opened the safe and took from it certain money and a number of checks.
Nowhere in the record before us appears a judgment on Goolsby's plea of guilty at his first arraignment. His brief states that he pleaded guilty to Count One, second degree burglary. Even if this were so, standing alone it would not necessarily acquit him of larceny charged in a separate count. Bowen v. State, 106 Ala. 178, 17 So. 335. Wildman v. State, 42 Ala.App. 357, 165 So.2d 396, is concerned with punishment under Code 1940, T. 15, § 387.
When a defendant appeals from a judgment of conviction, he implicitly agrees in case of reversal to return to the stage of proceedings at which the reversible error occurred. A trial, after issue is joined, is of necessity treated as an indivisible unit.
Hence, for error during trial the former jurors are not called back and testimony begun anew, rather we have a new writ, venire facias de novo or a new trial. Sewall v. Glidden, 1 Ala. 52; Grossman v. State, 241 Ind. 369, 172 N.E.2d 576.
Under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, Goolsby's first trial after the coram nobis judgment was a nullity because the court lacked one of its indispensable officers, an attorney for the defendant. We know that Gideon was retried--and acquitted.
If Goolsby's first arraignment was void, so too was any nol prosse consequent thereon. Hence, on the second trial the cause would revert de novo to arraignment because this was the severable point in the proceeding at which the former error infected judgment.
In United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448, we find:
'The Fifth Amendment provides that no 'person (shall) be subject for the same offence to be twice put in jeopardy of life or limb * * *.' The principle that this provision does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence. In this respect we differ from the practice obtaining in England. The rule in this country was explicitly stated in United States v. Ball, 163 U.S. 662, 671--672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300, a case in which defendants were reindicted after this Court had found the original indictment to be defective. It has been followed in a variety of circumstances; see, e.g., Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, (after conviction reversed because of confession of error); Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 ( ); Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 ( ).
'That a defendant's conviction is overturned on collateral rather than direct attack is irrelevant for these purposes, see Robinson v. United States, (6 Cir.,) 144 F.2d 392, 396, 397, aff'd on another ground, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944. Courts are empowered to grant new trials under 28 U.S.C. § 2255, and it would be incongruous to compel greater relief for one who proceeds collaterally than for one whose rights are vindicated on direct review.
See also Anno. 75 A.L.R.2d 683, particularly § 7, p. 700, et seq.
We see no application here of any potential pleas of former jeopardy even if the appellant were to have properly proved a former judgment of conviction of second degree burglary; and, with an implicit acquittal of grand larceny and receiving stolen goods, Bell v. State, 48 Ala. 684, would not apply here. Brooks v. State, 42 Ala.App. 69, 152 So.2d 441, does.
The trial before the jury occurred January 12 and 13, 1966. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, applies to trials after June 13, 1966, as required by Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. See Mathis v. State, 280 Ala. 16, 189 So.2d 564, where we find:
'There is nothing in the record indicating that Mathis, when he made the statements, either had a lawyer who was not permitted to be present, or requested a lawyer, or requested to see anyone.'
Hence, Goolsby's Pre-Miranda confession was admissible under the then extant Alabama practice. The fact that during in-custody interrogation the police did not advise Goolsby of having counsel or of being silent, was only a part of the totality. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, has been sufficiently discussed in Duncan v. State, 278 Ala. 145, 176 So.2d 840, Sanders v. State, 278 Ala. 453, 179 So.2d 35; Lokos v. State, 278 Ala. 586, 179 So.2d 714; Mathis, supra; Harris v. State, 280 Ala. 468, 195 So.2d 521; and Clark v. State, 280 Ala. 493, 195 So.2d 786.
Appellate counsel, extending their claim of double jeopardy, argue also that it was error for the trial judge to charge as to the elements of grand larceny and receiving, i.e., Counts Two and Three of the indictment.
No objection was made to the oral charge; the verdict was for Count One (second degree burglary). Hence, there is no error. Code 1940, T. 7, § 273.
Aaron v. State, 43 Ala.App. 450, 192 So.2d 456, was an appeal from denial of habeas corpus. There Aaron tried to contest a second sentence of five years.
The crime carried a possible maximum of twenty years. Two reasons were advanced to affirm: first, inadequate remedy, Rice v. Simpson, D.C., 271 F.Supp. 267; and, second, the time served plus the new time did not exceed twenty years. This latter was used to refute a claim of excess of jurisdiction as a basis for habeas corpus relief. City of Birmingham v. Perry, 41 Ala.App. 173, 125 So.2d 279.
The instant record, however, presents a direct appeal wherein our review is channeled by Code 1940, T. 15, § 389, which reads:
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McCart v. State
...to the point of qualifying the jury, which is the point before the appellant was put in jeopardy. In the case of Goolsby v. State, 44 Ala.App. 535, 215 So.2d 598, there were three counts in the indictment upon which the appellant was convicted charging burglary, grand larceny, and buying an......
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Robinson v. State, 1 Div. 41
...some four or five years in prison. We consider the question can only be raised in a State court by direct appeal. 1 See Goolsby v. State, 44 Ala.App. 535, 215 So. 598 and Aaron v. State, 43 Ala.App. 450, 192 So.2d The judgment below is. Affirmed. 1 As I understand it, Robinson contends that......
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