Pate v. State

• Decision Date: 07 May 1963
• Docket Number: 5 Div. 621
• Citation: 42 Ala.App. 114,154 So.2d 682
• Parties: Aubrey PATE v. STATE.
• Court: Alabama Court of Appeals

Page 682

154 So.2d 682

42 Ala.App. 114

Aubrey PATE v. STATE.

5 Div. 621.

Court of Appeals of Alabama.

May 7, 1963.

Aubrey Pate, pro se.

Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty Gen., for the State.

JOHNSON, Judge.

Aubrey Pate, the appellant, was charged by indictment at the September, 1950, term of the Tallapoosa County, Alabama, Grand Jury of the offenses of grand larceny and burglary. Pate, represented by a capable attorney of his own employment, the Honorable Jesse Willard Pienezza, was arraigned in October, 1950. Following arraignment, he was tried by a jury and found guilty of the offense of burglary and sentenced to a term of ten years in the penitentiary. From this conviction, no direct appeal was taken.

After completion of the service of other sentences and the beginning of the service of the ten year burglary sentence, Pate filed a petition for a Writ of Error Coram Nobis which was dated May 3, 1962, in the Circuit Court of Tallapoosa County, Alabama, and it appears that his petition was based on four grounds, namely:

1. That he was convicted after trial in October, 1950, for the crime of second degree burglary upon the uncorroborated testimony of Willard Ward and Earl Ott, both of whom were accomplices to the crime for which he was convicted.

2. That a bailiff or deputy sheriff or other court official served as a member of the jury panel which heard the case and rendered the verdict.

3. That the Circuit Solicitor of the Fifth Judicial Circuit of Alabama, and presently a Circuit Judge of the Fifth Judicial Circuit of Alabama; the Honorable Horace C. Akin, former Chief Deputy Sheriff of Tallapoosa County, now retired; and the Honorable Ralph Segrest, formerly County Solicitor, now deceased, had offered his co-defendants, Willard Ward and Earl Ott, dope or other inducement to get these witnesses to change their story and testify in behalf of the State at the original trial.

4. That his attorney at the original trial, Honorable Jesse Willard Pienezza, was prevented from taking an appeal in the case by virtue of being called into the armed forces of the United States in the Korean conflict.

The trial court, upon learning that the petitioner was without counsel to represent him in his petition for Coram Nobis, appointed the Honorable Ruth S. Sullivan and the Honorable John P. Oliver, both of whom were experienced trial lawyers of the Tallapoosa County, Alabama, Bar, and requested them to familarize themselves with the petitioner's case. The court further ordered that the petitioner be brought to the Tallapoosa County Jail on September 24, 1962, to give his appointed counsel a full opportunity to discuss the allegations of the petition with him. A careful examination of the record before us reveals that, upon this hearing, both the attorneys for the petitioner and the State acquitted themselves with diligence.

We feel that to here quote from a portion of the judgment of the learned trial judge, which we feel was supported by the evidence, will suffice to present an accurate and comprehensive resume of that which occurred at this hearing:

'After considering all of the competent, legal, material and relevant evidence in the case, the Court concludes and finds as follows:

'1. That the State had placed ample corroborating testimony before the jury trying the case, and the contention of the Petitioner in regard to the lack of corroboration by the State is hereby rejected.

'2. The Court is of the opinion that the party who Mr. Pate thought was a juror, was the Honorable Jeff Jinks, now deceased, who was a bailiff of the Court at the time of the trial and the Court finds that Mr. Jinks was not a member of the jury panel which heard the evidence and tried the case. The contention of the Petitioner that an official of the Court or law enforcement officer served as a member of the jury panel is hereby rejected as being wholly unsubstantiated.

'3. The Court further finds that while the co-defendants did identify the Petitioner, Aubrey Pate, as being present and participating...