Hamilton v. State, 3 Div. 386

• Decision Date: 06 March 1969
• Docket Number: 3 Div. 386
• Citation: 220 So.2d 267,283 Ala. 660
• Parties: Leon HAMILTON v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 267

220 So.2d 267

283 Ala. 660

Leon HAMILTON v. STATE of Alabama.

3 Div. 386.

Supreme Court of Alabama.

March 6, 1969.

Hobbs, Copeland, Franco, Riggs & Screws, Montgomery, for appellant.

MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.

LIVINGSTON, Chief Justice.

This appeal is from judgment of the Circuit Court of Montgomery County, Alabama, denying, after a hearing, appellant's petition for writ of error coram nobis.

The necessary facts, briefly stated, are as follows:

On February 19, 1932, the appellant, being ably represented by appointed counsel, pleaded not guilty to an indictment charging him with robbery, which indictment had been returned by a grand jury from Montgomery County, Alabama. On February 29, 1932, a petit jury, also of Montgomery County, after hearing all the evidence in the case, returned a verdict of guilty as charged in the indictment. Punishment was fixed at ninety-nine years in the state penitentiary (for what was, and still is, a capital offense in this state). On March 2, 1932, judgment and sentence were passed by the court in accordance with the jury's verdict, and at that time the trial court noted that appellant was a Negro male, twenty-two years of age and in good physical condition. In January, 1968, appellant filed a petition for writ of error coram nobis in the Circuit Court of Montgomery County alleging that at the time of his trial members of his race were systematically excluded from jury service in Montgomery County. Thereafter, a hearing was had on appellant's petition and on March 12, 1968, the court entered a judgment denying the writ. From that adverse judgment, petitioner appeals.

We note that a peculiar aspect of this coram nobis proceeding is that the original trial of petitioner occurred some thirty-six years prior to the filing of this petition, and, although petitioner was represented by experienced, competent counsel at this trial, he did not assert that which he now asserts for the first time, thirty-six years and four paroles later. As a matter of fact, both the trial judge who tried petitioner and the attorney appointed to represent him are long-since dead, and probably the members of the jury as well. We note these facts merely to point out the difficulties with which the courts are presented when stale claims, such as this one, are made for the first time by applications for special writs and with complete abandon of due diligence.

The only ground upon which petitioner bases his application for writ of error coram nobis is the allegation that members of his race--petitioner being a Negro--had been systematically excluded from both grand and petit jury service at the time of his trial solely because of race or color. As we have previously noted, although petitioner was ably represented by competent counsel, no such question was presented upon his trial. It is the judgment of this Court that it now clearly comes too late. Ex parte Seals v. State, 271 Ala. 622, 126 So.2d 474, cert. denied, 366 U.S. 954, 81 S.Ct. 1909, 6 L.Ed.2d 1246; Ex parte Aaron, 275 Ala. 377, 155 So.2d 334. Mr. Chief Justice Gardner, in Johnson v. Williams, 244 Ala. 391, 13 So.2d 683, dealt with a similar problem to the one we have here, and there stated as follows:

'The only matter presented in this petition not considered on the appeal relates to the attack upon the jury venire. As we have previously observed, no such question was presented upon the trial. Clearly enough, it now comes too late. This was forcibly demonstrated in the opinion in Vernon v. State, supra (240 Ala. 577, 200 So. 560), that one may waive and does waive his constitutional rights if he fails to assert or claim...