Smith v. State

• Decision Date: 14 December 1948
• Docket Number: 4 Div. 83.
• Citation: 38 So.2d 287,34 Ala.App. 194
• Parties: SMITH v. STATE.
• Court: Alabama Court of Appeals

38 So.2d 287

34 Ala.App. 194

SMITH v. STATE.

4 Div. 83.

Alabama Court of Appeals

December 14, 1948

Application for Rehearing Dismissed Jan. 4, 1949.

John C. Walters, of Troy, for appellant.

A A. Carmichael, Atty. Gen., and Thos. F. Parker, Asst. Atty Gen., for the State.

HARWOOD Judge.

This appellant was indicted for and by a jury found guilty of grand larceny. As punishment the court sentenced him to the State penitentiary for a term of eight years.

Abundant evidence was introduced by the State, which if believed by the jury under the required rule tended to show that this appellant stole a sewing machine head, the property of the Houston County Board of Education, from the Rehobeth High School in Houston County, Alabama.

In his motion for a new trial one of the grounds asserted by this appellant was that he was not represented by counsel in the trial below 'under the definition of the United Stated Supreme Court.'

Testimony in connection with this ground of appellant's motion tends to show that appellant was visited by Mr. W. G. Harwick a reputable and competent attorney of Dothan several times while he was confined in the Houston County jail.

Mr. J C. White, the jailer, testified that at the time of the hearing of a petition for a writ of habeas corpus filed in appellant's behalf, appellant and Mr. Hardwick 'disagreed on the legal procedure to be had in that case and Mr. Hardwick then withdrew from the case and made known to the court at the time that Mr. Smith stated to him that he had knowledge of the procedure and desired a different procedure from that which Mr. Hardwick wanted to pursue.'

According to Mr. White the appellant was free to deceive visitors at all times during his confinement, and was also free to write to whom he pleased, except that he was limited to one letter a week to his wife after interception of a letter from appellant to his wife in which he sought to have his wife make way with the machine head held by the State as evidence in this case.

Mr. H. E. Cameron, Chief Deputy Sheriff of Houston County, gave testimony similar to that of Mr. White, and further testified that this appellant had told him that he had read and studied law a year and a half while in a federal penitentiary.

It also appears that the appellant wrote out in long hand the motion for a new trial in this case. The same was later typed for him, and after a minor correction by appellant was filed. Appellant also filed an assignment of errors. Upon suggestion of the Solicitor the assignment of error was considered as part of the motion for a new trial.

The appellant then stated 'The assignment was filed under the federal court practice requiring assignment of errors.'

The 5th error assigned by appellant which by the court was treated as a part of the motion for a new trial was as follows:

'5. The defendant was tried without counsel; denied the right to retain counsel of his own choosing; denied the right to secure witnesses in his own behalf.'

Examination of the evidence submitted fully justifies the lower court's conclusion that appellant's assertion that he was denied the right to retain counsel of his own choosing, and was denied the right to secure witnesses and evidence in his own behalf was without merit. It is our opinion that the evidence tends fully to establish just the opposite, and that this appellant was in no way denied either right or in any way impeded in the reasonable exercise of such rights.

It is also our conclusion that this appellant's background, and his shown competence, and the circumstances of this case, completely negatives his contention that his rights under the Due Process Clause of the 14th Amendment to the United States Constitution have been invaded because he was not represented by counsel in the trial below.

In Bute v. People of State of Illinois, 333 U.S 640, 68 S.Ct. 763, 776, 92 L.Ed. 986, Mr. Justice Burton writing the majority opinion stated the federal constitutional requirement for counsel as follows:

'In reviewing the situation further, in 1942, this Court, in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, indicated that it did not regard it to be a violation of the Fourteenth Amendment for a Maryland trial court to refuse to appoint counsel to represent an indigent defendant charged with robbery under the circumstances of that case. We there stated the general principle as follows:

"The due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment although a denial by a state of rights or privileges specifically embodied in that and others of the first eight amendments may, in certain circumstances, or in connection with other elements, operate, in a given case, to deprive a litigant of due process of law in violation of the Fourteenth. * * * Asserted denial (of counsel) is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial. In the application of such a concept, there is always the danger of falling into the habit of formulating the guarantee into a set of hard and fast rules, the application of which in a given case may be to ignore the qualifying factors therein disclosed.' Id., at pages 461, 462, of 316 U.S., at page [1252], 1256 of 62 S.Ct., 86 L.Ed. 1595 [1601, 1602].

'If, in the face of these widely varying state procedures, this Court were to select the rule contended for by the petitioner and hold invalid all procedure not reaching that standard, it not only would disregard the basic and historic power of the states to prescribe their own local court procedures (subject only to a broad constitutional prohibition in the Fourteenth Amendment against the abuse of that power) but it would introduce extraordinary confusion and uncertainty into local criminal procedure where clarity and certainty are the primary essentials of law and order.'

The Bute case, supra, was decided 19 April 1948. Four of the Justices dissented from the majority opinion.

On 14 June 1948 the United States Supreme Court decided the case of Wade v. Mayo, as State Prison Custodian of the State of Florida, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647, four of the Justices dissenting.

After imprisonment on an unappealed conviction in a Florida court the appellant filed a habeas corpus petition in a state court on the ground that the trial court's refusal to appoint counsel for him was a denial of due process. Prior to his trial in the Florida Circuit Court appellant had requested that the court appoint counsel for him, claiming he was financially unable to employ one himself. The highest state court, 158 Fla. 264, 28 So.2d 585, affirmed denial of the petition on its merits as was made apparent by a subsequent decision.

A federal district court nearly a year later granted a petition for a writ of habeas corpus on the ground that refusal to appoint counsel for Wade at the trial deprived him of his constitutional right to due process of law. The judgment of the Federal District Court was reversed by the Circuit Court of Appeals for the Fifth Circuit, 158 F.2d 614, on the ground that the Fourteenth Amendment does not require the appointment of counsel in noncapital cases unless the state law so requires.

The Supreme Court of the United States reversed the decision of the Circuit Court of Appeals for the reason that the District Court's determination that under the circumstances the petitioner had a constitutional...