Senn v. State

• Decision Date: 16 August 1966
• Docket Number: 4 Div. 554
• Citation: 43 Ala.App. 323,189 So.2d 870
• Parties: Othie SENN v. STATE.
• Court: Alabama Court of Appeals

Page 870

189 So.2d 870

43 Ala.App. 323

Othie SENN v. STATE.

4 Div. 554.

Court of Appeals of Alabama.

Aug. 16, 1966.

T. E. Buntin, Jr., Dothan, for appellant.

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

JOHNSON, Judge.

In October, 1959, appellant was tried and convicted for the offense of grand larceny and sentenced to a term of eight years in the penitentiary as punishment therefor. An appeal was commenced by appellant but upon request by appellant it was dismissed. This is an appeal from the dismissal of a Petition for a Writ of Error Coram Nobis by the appellant filed in the Circuit Court of Houston County, Alabama, on July 20, 1965.

The first ground of the petition was that Judge Keener Baxley, Judge of the Twentieth Judicial Circuit of Alabama, was disqualified to preside over the trial of the appellant and to sentence him. At the trial, appellant was convicted of the offense of grand larceny and sentenced to a term of eight years in the penitentiary. The reason alleged for the disqualification is that Judge Baxley was Circuit Solicitor of the Twentieth Judicial Circuit of Alabama when the indictment was returned against appellant by the Grand Jury of Houston County, Alabama, at the August term of 1955.

At the beginning of the trial, Judge Baxley announced his disqualification to sit as the trial judge on the case. Before he could leave the court room to prepare a formal recusal, appellant and his attorney requested that Judge Baxley try the case. A written waiver of Judge Baxley's disqualification was signed by appellant. Appellant now claims:

'I did not competently and intelligently consent to Judge Baxley sitting as the trial Judge. In other words, I did not understandingly and knowingly waive, or acquiesce in the waiving of, any of my fundamental, constitutional or statutory rights, in the case whatsoever.'

The judge presiding at the hearing on the petition for writ of error coram nobis states:

'This waiver was introduced in evidence on the trial of this Petition and the Court finds that it was fully understood by the Petitioner and his attorney, an able lawyer in the trial of criminal cases. The Court, therefore, is of the opinion that the Petitioner was fully aware of his rights, the nature of his undertaking in waiving Judge Baxley's disqualification and the consequence thereof and for this reason the court is of the opinion that the disqualification of the trial judge was waived by petitioner and Petitioner cannot now complaint (sic).'

Appellant further contends that the disqualification of a Judge may not be waived by the defendant in a criminal case, especially where such disqualification is founded on public policy. But the waiver which was signed by appellant was an instrument which appeared upon the face of the record and was known to the court and to appellant. Therefore, writ of error coram nobis is not a proper remedy to raise the question as to the disqualification of the trial judge. Smith v. State, 245 Ala. 161, 16 So.2d 315. Only a direct appeal or writ of error could raise the question as to whether or not appellant could as a matter of law waive the disqualification of the trial judge which is established by Sec. 6, and 124, Tit. 13, Code of Alabama, 1940 (Recomp.1958) and Sec. 160 of the Alabama Constitution of 1901. One may waive and does waive his constitutional rights if he intelligently fails to assert or claim them at the appropriate time and place, and according to the established course of procedure. Johnson v. Williams, 244 Ala. 391, 13 So.2d 683.

That petitioner had the perfect right to present a question of the trial judge's disqualification upon an appeal from the judgment of the trial court is demonstrated by reference to Gill v. State, 61 Ala. 169; Salm v. State, 89 Ala. 56, 8 So. 66; State ex rel. Claunch v. Castleberry, 23 Ala. 85; Reeves v....