Thomas v. State, 1 Div. 190

• Decision Date: 18 March 1965
• Docket Number: 1 Div. 190
• Citation: 277 Ala. 570,173 So.2d 111
• Parties: Charles Edward THOMAS v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 111

173 So.2d 111

277 Ala. 570

Charles Edward THOMAS v. STATE of Alabama.

1 Div. 190.

Supreme Court of Alabama.

March 18, 1965.

Douglas Standard, Mobile, for appellant.

Richmond M. Flowers, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for the State.

LAWSON, Justice.

Charles Edward Thomas, a negro, was convicted of robbery in the Circuit Court of Mobile County. He was sentenced to serve a term of twenty-five years in the penitentiary. He has appealed to this court.

Submission here was on the record proper without a transcript of the evidence adduced at the trial. Thomas has made no effort to show in the trial court or in this court that he is entitled to a free transcript of the evidence on the ground that he is indigent.

Thomas was represented by counsel at all stages of the trial and the experienced attorney who represented him throughout most of the trial appears for him in this court.

The State in its original brief took the position that since there is no evidence in the record before us we should affirm without treatment of any of the rulings of the trial court which appear in the record proper.

But the appeal may not be disposed of in such a summary fashion.

The trial court, on motion of the State, struck Thomas' motion to quash the indictment on the ground that it was returned by a grand jury from which negroes had been systematically excluded because of their race or color.

In a long line of cases going back many years, the Supreme Court of the United States has held that a criminal defendant is denied the equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution of the United States if he is indicted by a grand jury or tried by a petit jury from which members of his race have been excluded because of their race. Eubanks v. State of Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991, and cases cited.

Decisions of this court are to the same effect. Washington v. State, 269 Ala. 146, 112 So.2d 179, and cases cited. In the early case of Green v. State, 73 Ala. 26, 31, Mr. Justice Stone, writing for the court, said:

'* * * We have uniformly, on Federal questions--those in the solution of which the Federal Supreme Court exercises a supervision of our judgments--conformed our rulings to the law as declared by that tribunal. This we have done, because, on all questions arising under the Constitution of the United States, and the acts of Congress thereunder, the rulings of that court are final, to which all State tribunals must yield. Nelson v. McCrary, 60 Ala. 301; Pollard v. State, 65 Ala. 628; Maguire v. Road Commissioners, 71 Ala. 401. We will not depart from these rulings, however much we may sometimes differ from the reasoning and conclusions of the majority of that court. * * *'

It seems to be settled that a motion to quash is the proper way to challenge an indictment and a trial venire on the ground of intentional racial discrimination. Washington v. State, supra, and cases cited.

Sections 278 and 285, Title 15, and § 46, Title 30, Code 1940, have been held to be procedural statutes, designed to prevent quashing of indictments or venires for mere irregularities and to obviate the resulting delays in the administration of justice. Those statutes do not deny to one charged with a crime the right to present for a determination the question of whether the rights guaranteed by the Fourteenth Amendment to the Constitution of the United States have been violated. Vernon v. State, 245 Ala. 633, 18 So.2d 388; Washington v. State, supra.

The State's motion to strike the motion to quash the indictment was grounded on the fact that the motion to quash was filed after the defendant, Thomas, had pleaded not guilty to the indictment.

Under several decisions of this court the State's motion was well taken and under those decisions the trial court did not commit reversible error in granting the State's motion.

In the following cases, among others, this court held that a motion to quash an indictment, to be available, must be made before arraignment and plea to the merits. Johnson v. State, 134 Ala. 54, 32 So. 724; Bell v. State, 227 Ala. 254, 149 So. 687; Wimbush v. State, 237 Ala. 153, 186 So. 145; Owen v. State, 255 Ala. 354, 51 So.2d 541; Reeves v. State, 264 Ala. 476, 88 So.2d 561. The rationale of the holdings in those cases is that by not filing the motion to quash before pleading to the merits, the defendants waived any right they might have to have the indictments quashed.

If we were to affirm the action of the trial court in striking Thomas' motion to quash because not timely filed, it is probable that the Supreme Court of the United States would not disturb our action on direct attack. In the case of Fay v. Noia, 372 U.S. 391, 428, 83 S.Ct. 822, 843, 9 L.Ed.2d 837, it was said:

'It is a familiar principle that this Court will decline to review state court judgments which rest on independent and adequate state grounds, notwithstanding the co-presence of federal grounds. * * *'

But see Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408.

But Fay v. Noia, supra, holds, as we understand the opinion, that if the defendant brings habeas corpus proceedings in the appropriate federal court, that court can inquire into the facts and make its own determination as to whether the petitioner did in fact waive his constitutional rights. Fay v. Noia holds that an independent state ground does not arbitrarily bar federal review on habeas corpus.

The United States Court of Appeals for the Fifth Circuit in Whitus v. Balkcom, 333 F.2d 496, relying on Fay v. Noia, held a Georgia rule of assuming waiver from a failure to make a timely objection would not be allowed to frustrate the federally guaranteed right of a fairly constituted jury. This despite the fact that Whitus did not attempted to raise the jury question in the Georgia trial court.

There are two other decisions of the United States Court of Appeals for the Fifth Circuit which deal with the question of waiver in systematic exlusion cases--United States ex rel. Goldsby v. Harpole, 263 F.2d 71, cert. denied, 361 U.S. 838, 80 S.Ct. 58, 4 L.Ed.2d 78; and United States ex rel. Seals v. Wiman, 304 F.2d 53, cert. denied, 372 U.S. 924, 83 S.Ct. 741, 9 L.Ed.2d 729. In each case the attorneys for the negro defendant did not make a timely objection to the composition of the jury. In spite of this noncompliance with the state rule requiring such an objection to be made in the early stages of a trial, the court held that there was no waiver.

Seals v. Wiman, supra, arose out of a conviction of Seals in the Circuit Court of Mobile County of the crime of rape. His conviction was affirmed by this court. Seals v. State, 271 Ala. 142, 122 So.2d 513. A petition for leave to file in the trial court a petition for writ of error coram nobis was denied by this court on the ground that Seals, a negro, by not timely attacking the composition of the jury in the trial court, had waived his right to assert that members of his race had been systematically excluded from the grand and petit jury. Certiorari was denied by the Supreme Court of the United States, without prejudice to an application for a writ of habeas corpus in the appropriate United States District Court. Seals v. State of Alabama, 366 U.S. 954, 81 S.Ct. 1909, 6 L.Ed.2d 1246. Application was then made to a federal district court pursuant to the suggestion of the Supreme Court of the United States, but the application for writ of habeas corpus was denied. An appeal then followed to the United States Court of Appeals for the Fifth Circuit, where it was held that there had been no waiver and Seals' conviction was held to be unconstitutional, void and of no effect.

We had this question of waiver in Ex parte Aaron, 275 Ala. 377, 155 So.2d 334. Aaron's first conviction was reversed by this court. Aaron v. State, 271 Ala. 70, 122 So.2d 360. After remandment he was retried and was again convicted. On appeal to this court we affirmed. Aaron v. State, 273 Ala. 337, 139 So.2d 309. Certiorari was denied by the Supreme Court of the United States. Aaron v. Alabama, 371 U.S. 846, 83 S.Ct. 81, 9 L.Ed.2d 82. Thereafter Aaron filed in this court a petition for leave to file in the trial court a petition for writ of error coram nobis raising the question of exclusion of members of his race, Negro, from both the grand jury and the petit jury. We denied the petition filed here. Certiorari was denied by the Supreme Court of the United States. Ex parte Aaron, 275 Ala. 377, 155 So.2d 334, cert. denied, Aaron v. Alabama, 375 U.S. 898, 84 S.Ct. 177, 11 L.Ed.2d 126.

This court's denial of the petition was based on the ground that Aaron, a negro, had waived his right to question the compensation of the grand and petit jury because he had not timely filed a motion to quash in the trial court. The court's opinion shows an express waiver by the defendant and his negro attorneys prior to arraignment. The refusal of the Supreme Court of the United States to review a state court...