Hamilton v. State, 6 Div. 83

Decision Date13 February 1969
Docket Number6 Div. 83
Citation219 So.2d 369,283 Ala. 540
PartiesCharles Clarence HAMILTON v. STATE of Alabama.
CourtAlabama Supreme Court

Orzell Billingsley, Jr., and Peter A. Hall, Birmingham, and Frank H. Heffron, New York City, for appellant.

MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

LIVINGSTON, Chief Justice.

This appeal is from appellant's conviction in the Circuit Court of Jefferson County, Alabama, of burglary in the first degree with sentence of life imprisonment.

On December 23, 1963, Charles Clarence Hamilton, appellant, was convicted by a jury of the offense of breaking and entering an inhabited dwelling in the nighttime with the intent to ravish. Title 14, Sec. 85, Code of Alabama 1940.

The indictment under which the appellant was convicted was returned by the Grand Jury of the Circuit Court of the Tenth Judicial Circuit on February 8, 1957 and contained two counts of burglary in the first degree. The first count alleged that the appellant 'in the nighttime, with intent to steal, did break into and enter the inhabited dwelling house of Jacob C. Milko, a person lodged therein.' The second count alleged that the appellant 'in the nighttime, with intent to ravish, did break into and enter the inhabited dwelling house of Jacob C. Milko, a person lodged therein, against the peace and dignity of the State of Alabama.'

Hamilton was first indicted on November 9, 1956, and this indictment contained only one count charging him with burglary of an inhabited dwelling in the nighttime with intent to steal. He was arraigned on that indictment on January 4, 1957. He pleaded not guilty. Court-appointed counsel represented Hamilton at this arraignment when the plea was entered.

A second indictment against Hamilton was returned on February 12, 1957, and it contained two counts. One count charged burglary of an inhabited dwelling in the nighttime with intent to steal, and the other count charged burglary of an inhabited dwelling in the nighttime with intent to ravish.

Both indictments related to the same incident, that is, the breaking and entering of the inhabited dwelling of one Jacob C Milko during the early morning hours of October 13, 1956.

The lawyer who had been appointed to defend Hamilton against the first indictment was advised by the state's prosecutor that the second indictment had been returned and that Hamilton would be 'rearraigned' and the case set for trial.

Hamilton was arraigned on the second indictment on March 1, 1957, and again he pleaded not guilty. However, neither the lawyer who had been appointed to defend him against the first indictment nor any other lawyer appeared on his behalf at this 'rearraignment' under the second indictment. The court did not appoint a lawyer to defend Hamilton against this second indictment until March 4, 1957, when the same lawyer was appointed who had been appointed to defend him against the first indictment.

Appellant was brought to trial on the second indictment on April 23, 1957, when a jury found him guilty under the second count of the indictment and inflicted the death penalty. The first indictment was 'nolle prossed' on April 24, 1957. This court affirmed the conviction on September 17, 1959, Hamilton v. State, 270 Ala. 184, 116 So.2d 906, cert. denied, 363 U.S. 850, 80 S.Ct. 1638, 4 L.Ed.2d 1737. A petition for leave to file an application for writ of error coram nobis was denied by this court on August 15, 1960, Ex Parte Hamilton, 271 Ala. 88, 122 So.2d 602. The United States Supreme Court granted certiorari, Hamilton v. Alabama, 364 U.S. 931, 81 S.Ct. 388, 5 L.Ed.2d 364, and reversed in 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114.

Following this reversal by the U.S. Supreme Court, and upon motion of his counsel, appellant was committed to the Alabama State Hospital at Mt. Vernon on February 13, 1963, and returned to the jurisdiction of the Circuit Court for trial in June, 1963.

On June 21, 1963, appellant filed a motion to quash the indictment on the ground of systematic exclusion of Negroes from grand juries in Jefferson County. On July 22, 1963, a hearing was commenced on this question. On August 9, 1963, the motion to quash the indictment was denied.

On September 27, 1963, a second motion to quash the indictment was filed in the Circuit Court alleging inter alia that the indictment was unconstitutionally vague and did not set out any crime with sufficient clarity to inform the defendant of what he was called upon to defend; that the indictment was void and of no effect because the defendant had been previously tried and convicted under that indictment, which conviction was reversed by the U.S. Supreme Court; that another trial on the same indictment placed the defendant twice in jeopardy of his liberty and life. Also, on September 27, 1963, appellant filed a demurrer stating the same grounds as those contained in the motion to quash the indictment. In both the motion to quash the indictment and the demurrer filed on September 27, 1963, appeared a claim alleging deprivation of appellant's rights under the Fourteenth Amendment to the Constitution of the United States. On October 4, 1963, the motion to quash the indictment and the demurrer were overruled.

Appellant was arraigned, with counsel representing him, on October 4, 1963. He pleaded not guilty and not guilty by reason of insanity.

On December 9, 1963, appellant filed a motion to dismiss prosecution on the ground that he had been effectively deprived of his defense of insanity because of the state's failure to provide counsel at the original arraignment, in violation of the Fourteenth Amendment to the United States Constitution and in violation of the mandate of the United States Supreme Court issued in this cause. The state filed a motion to strike the motion to dismiss. The Circuit Court granted the motion to strike, but allowed appellant to place in the record a proffer of testimony by a qualified psychiatrist in support of appellant's motion to dismiss.

On December 9, 1963, appellant filed a plea of autrefois acquit alleging that count one of the indictment, charging burglary with intent to steal, should be dismissed on the ground of acquittal on that count by the jury at appellant's original trial. This motion was granted by the trial court.

On December 9, 1963, appellant filed a motion to quash the venire on the ground that Negroes in Jefferson County had been systematically excluded from jury service. The evidence taken on the motion to quash the indictment on the ground of systematic exclusion of Negroes was considered by the court for purpose of the motion to quash the venire, and the motion to quash the venire was denied.

On December 10, 1963, appellant filed a motion to declare void the composition of the jury sworn to try defendant on the ground of systematic exclusion of Negroes. This motion was denied. The trial commenced on this same date.

At the close of the state's case, appellant moved to dismiss, and filed a written motion to exclude the testimony and for judgment. These motions were overruled.

The jury found appellant guilty of burglary as charged in count 2 of the indictment and he was sentenced to life imprisonment on December 11, 1963. Appellant filed a motion for new trial on January 7, 1964. This motion was submitted to the court and overruled on February 21, 1964. Notice of appeal was filed on March 6, 1964. The transcript of the evidence furnished appellant at state expense was filed March 26, 1965 after several extensions of time to file were granted appellant's lawyers.

The state's evidence tended to prove the following: On the night of October 13, 1956, Mr. and Mrs. Jacob C. Milko were occupying a dwelling house located at 1501 Avenue G, Ensley, Jefferson County, Alabama. Mr. and Mrs. Milko were living with the grandparents of Mrs. Milko. The grandparents were Jake and Mary Giangrosso, each of whom occupied separate sleeping quarters located in different parts of the house. Mrs. Giangrosso's bedroom adjoined that of Mr. and Mrs. Milko and was connected by a door between the two bedrooms. There were two entrances to the house, a front or main entrance, and a rear or back entrance. The front or main entrance opened into Mrs. Giangrosso's bedroom and it was the Milkos' custom to enter through this front door in order to enter the room which adjoined Mrs. Giangrosso's which was occupied by the Milkos. The family shared a common bath but separate kitchens were available. Mr. Giangrosso occupied a bedroom in another part of the house.

During the early morning hours, sometime between 2:00 and 3:00 a.m. of October 13, 1956, Mr. and Mrs. Milko were awakened by a sort of moaning yell coming from Mrs. Giangrosso in the adjoining bedroom. Mr. Milko got out of bed and opened the door leading into Mrs. Giangrosso's bedroom, where he observed the defendant, Charles Clarence Hamilton, standing near the door between the two bedrooms. Mr. Milko testified that he saw appellant standing with his trousers off and his privates exposed and wearing neither shoes nor socks. He further testified that he was positive that he locked the front door when he came in from work earlier that evening, but that when he found the defendant in Mrs. Giangrosso's bedroom, the front door was open; that after he observed the defendant, he went back in his bedroom and procured a revolver, returned to hold the defendant at gun point while Mrs. Milko left to call the police. A few moments later, two police officers arrived and took the defendant into custody. Mr. Milko also testified that he was employed by the Tennessee Coal, Iron and Land Company, Transportation Division, and that on the day in question his usual working hours were from 3:00 p.m. until 11:00 p.m., but that he got off from work a quarter to 11:00 p.m. and went on home; that when he got home he found that his wife, her grandmother and grandfather had all retired for the...

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  • White v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 24 Agosto 1990
    ...be laid in an indictment is not the title, but the occupancy or possession at the time the offense was committed." Hamilton v. State, 283 Ala. 540, 545, 219 So.2d 369, 374, cert. denied, 396 U.S. 868, 90 S.Ct. 134, 24 L.Ed.2d 121 (1969) (quoting Fuller v. State, 28 Ala.App. 28, 30, 177 So. ......
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    ...be laid in an indictment is not the title, but the occupancy or possession at the time the offense was committed.' Hamilton v. State, 283 Ala. 540, 545, 219 So.2d 369, 374, cert. denied, 396 U.S. 868, 90 S.Ct. 134, 24 L.Ed.2d 121 (1969) (quoting Fuller v. State, 28 Ala.App. 28, 30, 177 So. ......
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