Magee v. State

• Decision Date: 31 May 1966
• Docket Number: 8 Div. 27
• Parties: Glen T. MAGEE v. STATE.
• Court: Alabama Court of Appeals

Page 274

187 So.2d 274

43 Ala.App. 218

Glen T. MAGEE v. STATE.

8 Div. 27.

Court of Appeals of Alabama.

May 31, 1966.

Glen T. Magee, pro se.

Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

CATES, Judge.

This appeal from a judgment of the Madison Circuit Court was submitted October 21, 1965.

Magee was convicted on an indictment charging him with escaping from the custody of a penitentiary guard. Code 1940, T. 14, § 153, ¹ as amended, provides:

'Any convict who escapes or attempts to escape from the penitentiary, or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary, before the expiration of the term for which he was sentenced, shall, on conviction be imprisoned for an additional term of not less than one year.'

He was sentenced to five years imprisonment.

I.

This is an instance in which a prison break was cloaked beneath a coram nobis hearing.

Magee was subpoenaed by a fellow inmate of Kilby Prison, Luther Ricketts, to appear as a witness in his behalf at a coram nobis hearing in Huntsville January, 1963.

Magee and another witness were put in the witness room. After the other witness had testified, court officials found the door to the witness room locked. When the door was opened, the hinged bars on the outside of the window swung ajar at one end and a long rope of strips of mattress ticking was draped to the ground below.

Horace Garth, an attorney at law, discovered Magee later that night in a side yard of his home two or three blocks south of the courthouse. He called the police who picked Magee up.

Garth, who appeared as a witness for the State, was examined by Magee (Magee having consistently rejected the court's offer of counsel) on cross:

'Q Mr. Garth, you said you wasn't positive that I was the man. There is a doubt in your mind that I'm the one?

'A Well, there's not too much doubt, Mr. Magee. In my opinion, it was you.

'Q All right, sir. I want to thank you again for not shooting me.

'A I guess we are both glad of that.'

II.

The State sought to prove Magee's confinement in the penitentiary in January, 1963, by the testimony of Mr. M. S. Dean, Records Clerk of the State Board of Corrections. Magee objected to Dean's being asked if he had Magee's records; also, as to whether or not Magee was in prisoner status January 29, 1963.

The court overruled all of Magee's objections to this line of questioning. This was error under the best evidence rule. See McElroy, Law of Evid. (2d Ed.), § 229.02(3); Wright v. State, 38 Ala.App. 64, 79 So.2d 66(1)(2); Ex parte Nations, 42 Ala.App. 128, 154 So.2d 762; Code 1940, T. 15, § 27; T. 45, § 57. This latter § 57 provides:

' § 57. On the trial of any convict for any offense committed within the penitentiary, or other convict prison or convict camp, the fact of confinement in the penitentiary shall be presumptive evidence of a legal conviction and sentence of imprisonment, and a copy of transcript of the conviction and sentence filed with the department and certified by it to be correct, shall be received as evidence of such conviction.'

We forego construing this section as extending the penitentiary's bounds to encompass an escapee wherever he goes while his sentence remains to be endured and obeyed. However, we consider the error in allowing oral rather than documentary proof of Magee's confinement to be without injury.

The best evidence rule, like the Sabbath, was made for man, and not man for the best evidence rule.

III.

At one point before the trial began, Magee sought to have some more of his fellow convicts brought up to Madison County to testify in his behalf.

Magee was indicted at the May 1963 Term of the Madison Circuit Court. The true bill was filed May 10, 1963. It was March 18, 1964, before Magee was brought to trial. Following its caption, the transcript of evidence states:

'APPEARANCES: David Thomas, Esq., for the State of Alabama

Defendant not represented by counsel.

'TRIAL BEFORE THE HONORABLE DAVID R. ARCHER, JUDGE, AND A JURY.

'THE COURT: Let the record show that Mr. Magee requested summons of Luther Ricketts, Don R. Lee, Billy Smith, Thomas Williams, Amos Barnett, and Calvin Baker, all of Kilby Prison, and Donald Brewer, Robert Hornbuckle and Jimmy Shepard of Atmore Prison as witnesses in his behalf in this case. The Court directed Mr. Magee that he would have to show cause for summoning the witnesses and the Defendant--

'MR MAGEE: I object to all of that. I also want to make that a part of the record.

'THE COURT: Wait until we get to it. And that you refused to show cause on the ground sthat--

'MR. MAGEE: I didn't say that, Your Honor. I want it put into the record what I said. I said that my constitutional rights gave me the right to refuse to identify what any witness would testify to until he testifies on the stand.

'THE COURT: Let the record show that the Court disallows the summoning of these witnesses, unless the Defendant gives a showing as to the materiality of their testimony in this case that he is charged with. Let the record show that the motion to show cause as to the absent witnesses was made by the State of Alabama, which said motion was granted by the Court.

'MR. MAGEE: I would like the record to show that two of the witnesses were present when the alleged crime that I am charged with was committed. I would also like to point out--

'THE COURT: Wait just a minute. The Court offered you an opportunity to show cause at the time and you refused to do so.

'MR. MAGEE: I stand on my constitutional rights.

'THE COURT: I understand that. Do you wish to make a showing?

'MR. MAGEE: I would like the record to show, Your Honor, that all the persons named, with the exception of two, were here in Huntsville at the time the crime was committed.

'MR. YOUNGER: I would like the record to further state if this Defendant made a--

'MR. MAGEE: I object to Mr. Younger putting anything into the record. I object to anything he says going into the record.

'MR. YOUNGER: We had started to say that we would like the record to show that in the event that this Defendant made a showing for the absent witnesses, that we would expect that the state would admit certain portions of that showing made by the Defendant.

Under Pirkle v. State, 31 Ala.App. 464, 18 So.2d 694, a deposition on written interrogatories (Code 1940, T. 15, § 301) was the exclusive mode for a defendant in a criminal cause to take testimony of a convict.

However, by Act 51, June 10, 1949, the Legislature amended Code 1940, T. 45, § 61, by adding:

'* * * Moreover, upon the Sworn petition of the defendant in a criminal prosecution showing that a convict serving a sentence in the penitentiary Knows facts which would be beneficial to him, the judge may, if he believes the ends of justice will be served thereby, order the issuance of such a writ to secure the appearance of the convict to testify on behalf of the defendant. The writ shall be served on the director ² at least one week before the day appointed to have the witness in court. * * *' (Italics added.)

Of this § 61, as amended, McElroy on Evidence (2d Ed.), § 346.03, comments:

'This statute seems to invest the presiding judge with measurable discretion as to whether he will or will not order the issuance of the applied-for writ.

'Ordinarily, wisdom dicates that the request for an order for the issuance of the writ be granted.

'Whether a ruling by the presiding judge denying the application for an order for issuance of the writ is subject to review by mandamus before trial or on appeal after final judgment, for abuse of discretion (i.e., in more polite terminology 'misuse of discretion'), seems not to have been decided by any Alabama appellate court.

'As a final resort, the accused may take the convict's deposition under title 15, sec 301, quoted in sec 245.03 herein. ³ Pirkle v. State, 31 Ala App. 464, 18 So2d 694.'

Constitution 1901, § 6, provides pertinently:

'That in all criminal prosecutions, the accused has a right * * *; to have compulsory process for obtaining witnesses in his favor; * * *

See Walker v. State, 117 Ala. 85, 23 So. 670.

After Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, we consider the due process clause of the Fourteenth Amendment has incorporated the requisites of the Sixth Amendment of the Federal Constitution as a rule for state criminal procedure. Pointer, being a case of the lack of the State's bringing in witnesses against a defendant to confront him, is not on its facts directly governing here.

However, the reasoning underlying the assimilation of the Sixth Amendment leaves little doubt that the court has finally come over to the conclusion of the rightness of the idea expressed by Mr. Justice Black in his dissent in Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903.

The Sixth Amendment reads, in part:

'In all criminal prosecutions, the accused shall enjoy the right * * * to have compulsory process for obtaining Witnesses in his favor, * * *'

Compulsory process as a right as now fixed in American constitutional law is basic. However, its exceptions test the rule postulated thus:

(1) Process only runs with the writ and sovereignty in our law is largely territorial. Redmond v. State, 4 Ala.App. 190, 59 So. 181. Cf. United States v. Hoffman, D.C., 24 F.Supp. 847, and D'Aquino v. United States, 9 Cir., 192 F.2d 338.

(2) The person subject to the sought-for process may be under some prior and overriding obligation affecting his mobility, e.g.,

(a) soldiers, sailors and mariners. Lovejoy v. State, 247 Ala. 48, 22 So.2d 537; (b) convicts, as here;

(c) the superintendent or a physician at one of the State hospitals. Code 1940, T. 45, § 226.

(d) Ambassadors and, under treaty, consuls. In re Dillon, 7 Fed.Cas. page 710, No. 3914; United States v. Trumbull, 48 F. 94.

(3) The person whose testimony is wanted is an official...