Swain v. State
| Decision Date | 08 March 1973 |
| Docket Number | 7 Div. 796 |
| Citation | 274 So.2d 305,290 Ala. 123 |
| Parties | Robert SWAIN v. STATE of Alabama. |
| Court | Alabama Supreme Court |
Robert Swain was convicted of rape and sentenced to death by electrocution by a jury in Talladega County, Alabama. Judgment and sentence imposing the death penalty were entered accordingly.
This court affirmed the conviction and sentence in Swain v. State, 275 Ala. 508, 156 So.2d 368 (1963), rehearing denied September 26, 1963.
The Supreme Court of the United States affirmed in 1965. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, rehearing denied 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442.
Swain's application for writ of error coram nobis was denied by the Circuit Court of Talladega County, the trial court. This court affirmed. Swain v. State, 285 Ala. 292, 231 So.2d 737 (1970).
Swain then applied to the United States Supreme Court for certiorari. Certiorari was granted.
On June 29, 1972, the United States Supreme Court, 408 U.S. 936, 92 S.Ct. 2860, 33 L.Ed.2d 753, entered an order which vacated the judgment, insofar as it leaves undisturbed the death penalty imposed and remanded the case to this court for further proceedings. We received this order on July 26, 1972.
The question presented in this case is identical to that presented in Wade Hubbard v. State of Alabama (1973) 290 Ala. 118, 274 So.2d 298, decided by the court this day, except that upon a conviction for rape the punishment is death or imprisonment in the penitentiary for not less than 10 years. Title 14, § 395, Code of Alabama 1940.
The dissenting justices would have this court order a new trial for this defendant on the issue of punishment only. In effect, they contend that this solution is compelled because the United States Supreme Court mandated out the death sentence, and they reason the punishment to be imposed by a jury can vary from a minimum of ten years up to any number of years imprisonment in the penitentiary, and we cannot know what sentence a jury might impose.
No statutory nor common law power exists in Alabama authorizing such a bifurcated jury trial. Any attempt to construct such a system (as the dissent suggests), novel to our jurisprudence, would create problems well nigh insoluble either by this court or by the trial court to which we might remand the matter.
Is it not reasonable and logical to assume that if the jury (which tried this defendant and imposed the most extreme penalty of all--death) had been instructed that the death penalty would be an impermissible punishment, then the jury would have imposed the next most severe penalty?
In Hubbard, we quoted from the case of Anderson v. State, Fla., 267 So.2d 8:
'Under the circumstances of these particular cases, it is our opinion that we should correct the illegal sentences previously imposed without returning the prisoners to the trial court.'
It is our judgment that all of these reasons and others compel the solution we reach, which is to correct the sentence to impose a life sentence in lieu of the death penalty.
This is the conclusion reached by the Louisiana Supreme Court in State v. Williams, 263 La. 284, 268 So.2d 227; the Georgia Supreme Court in Sullivan v. State, (M.S.1972) Ga., 194 S.E.2d 410; and the North Carolina Supreme Court in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19.
We agree with the Louisiana Supreme Court, which held in State v. Williams, supra:
'We construe the Mandate of the United States Supreme Court to require the imposition of a sentence other than death. * * *'
Thus, the sentence of death imposed upon the defendant, Robert Swain, is vacated and set aside. In lieu and instead thereof, the sentence is corrected to provide that the said Robert Swain be imprisoned in the State penitentiary for the term of his natural life. The clerk of this court shall furnish a certified copy of this order to the clerk of the Circuit Court of Talladega County, and the clerk of that court shall issue a commitment in this case based upon this sentence of life imprisonment and shall forward the commitment to the Board of Corrections.
A copy of this opinion shall also be transmitted to the Court of Criminal Appeals because that court acquired jurisdiction of criminal matters after the instant case was originally decided by this court.
It follows that except as to the death sentence, the judgment of the circuit court is affirmed. With regard to the death sentence, the judgment of the circuit court is modified and the sentence is reduced to life imprisonment, and as modified, the judgment is affirmed.
Modified and affirmed.
The majority decision is based upon the supposition that the jury, had the death penalty not been available to them as an alternative punishment, would have sentenced the defendant to life imprisonment. With all deference, I do not believe the majority possesses such occult power. I, therefore, concur in the dissenting opinion authored by Justice Coleman, save one portion of his dissent which would allow the introduction of the transcript into evidence at the penalty trial.
I believe that our present law regarding the introduction of a transcript of a former trial should apply to the penalty trial just as it would in any other situation. Before the former testimony is admissible, proof must be made to the trial judge that the personal attendance of the witness at court is not procurable.
The following causes of non-production of the witness are sufficient: that the witness is dead; that the witness is permanently or indefinitely absent from Alabama; that the witness cannot be found after diligent search; that the witness is in the military service in time of war; that the opponent has caused the witness to be absent; that the witness is now insane; that the witness has become disqualified by facts occurring subsequent to the former trial, and the party now offering the former testimony is not responsible for such disqualification; or that the witness now avails himself of a privilege not to testify. 2 J. McElroy, Law of Evidence in Alabama, Section 245.07(8) (2d Ed. 1962).
The introduction of the transcript into evidence at the penalty trial should further be qualified according to the best evidence rules. See 2 J. McElroy, Law of Evidence in Alabama, Section 235.02 (2d Ed. 1962).
Robert Swain was convicted for rape and sentenced to death pursuant to Title 14, § 395, which recites:
'Any person who is guilty of the crime of rape shall, on conviction, be punished, at the discretion of the jury, by death or imprisonment in the penitentiary for not less than ten years.'
This court affirmed in 1963. 275 Ala. 508, 156 So.2d 368.
The Supreme Court of the United States affirmed in 1965. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.
Swain's subsequent application for writ of error coram nobis was denied by the trial court. This court affirmed in 1970. 285 Ala. 292, 231 So.2d 737.
Swain applied to The Supreme Court of the United States for certiorari. That court granted the petition, and on July 26, 1972, issued to us a mandate which in pertinent part recites:
'WHEREAS, lately in the Supreme Court of the State of Alabama, . . . there came before you a cause between Robert Swain and the State of Alabama, No. 7 Div. 796, wherein the judgment of the said Supreme Court was duly entered on the Fifth day of February A.D. 1970, as appears by an inspection of the petition for writ of certiorari to the said Supreme Court and the response thereto.
'AND WHEREAS, in the 1971 Term, the said cause having been submitted to the SUPREME COURT OF THE UNITED STATES on the said petition for writ of certiorari and response thereto, and the Court having granted the said petition:
'NOW, THEREFORE, THE CAUSE IS REMANDED to you in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and laws of the United States, the said writ of certiorari notwithstanding.'
See: Swain v. Alabama, 408 U.S. 936, 92 S.Ct. 2860, 33 L.Ed.2d 753.
The opinion of The Supreme Court of the United States in Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33...
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