Thomas v. State, 3 Div. 51

Decision Date16 August 1960
Docket Number3 Div. 51
Citation40 Ala.App. 697,122 So.2d 535
PartiesJulius E. THOMAS v. STATE.
CourtAlabama Court of Appeals

Julius E. Thomas, pro se.

MacDonald Gallion, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.

CATES, Judge.

Thomas, conceiving that his detention in Kilby Prison was illegal, filed a petition for habeas corpus in the Montgomery Circuit Court.

The Honorable Eugene W. Carter granted the State's motion to strike the petition. From Judge Carter's order striking the petition, Thomas appeals here.

The grounds for the writ were that Thomas, after arraignment in Jefferson County, withdrew his plea of not guilty to two charges of robbery, pled guilty, and was sentenced by the court without the intervention of a jury to ten years imprisonment (the statutory minimum) in each case. No appeal was taken.

Conviction of robbery, a capital offense, puts the fixing of punishment with a jury. Under the authority of Ex parte Jenkins, 38 Ala.App. 117, 76 So.2d 858, the above sentences constitute reversible errors. Had our jurisdiction been invoked by error or appeal, we should have reversed the judgments of the Jefferson Circuit Court and remanded the causes there for proper sentences.

However, habeas corpus does not serve the office of appeal: it must reach some fundamental apparent illegality. Thomas, who was represented by counsel in open court, changed his plea from not guilty to guilty, stood by, and without objection accepted a minimum sentence upon the solicitor's agreement. See Keene v. State, 37 Ala.App. 713, 76 So.2d 180; Annotation 76 A.L.R. 468.

His time for appeal now long past, Thomas may not, without trenching on invited error, use the judge's lapsus linguae as a talking point for his freedom.

It is clear by analogy from the answer to the certified question of this court given by our Supreme Court in Ex parte Tanner, 219 Ala. 7, 121 So. 423, that the trial judge's fixing punishment instead of his putting it to a jury is error but not of such degree as to void the judgment. We see no Fourteenth Amendment due process question, Cross v. State of North Carolina, 132 U.S. 131, 140, 10 S.Ct. 47, 33 L.Ed. 287; nor under § 6 of our Constitution.

Thomas's plea of guilt authorized the court to pass judgment on him. Code 1940, T. 15, § 277, which, on a plea of guilty, permits the trial judge to examine witnesses to determine the character of the offense, is for the benefit of the court and is not mandatory. Martin v. State, 62 Ala. 240.

We have written to the substantive question rather than to the adjectival...

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17 cases
  • Rickard v. State
    • United States
    • Alabama Court of Appeals
    • February 6, 1968
    ...of by a jury (Code 1940, T. 14, Sec. 415), is a procedural error which cannot be raised in a coram nobis proceeding. Thoams v. State, 40 Ala.App. 697, 122 So.2d 535; Isbell v. State, 42 Ala.App. 498, 169 So.2d Moreover, it might be inferred that Rickard pled guilty to the lesser offense of ......
  • Norris v. State, 6 Div. 213
    • United States
    • Alabama Court of Criminal Appeals
    • March 16, 1990
    ...nobis proceeding. The court foreclosed a similar claim in Isbell v. State, 42 Ala.App. 498, 169 So.2d 27 (1964). In Thomas v. State, 40 Ala.App. 697, 122 So.2d 535 (1960), the court reviewed the trial court's striking the petitioner's petition for writ of habeas corpus wherein the petitione......
  • Aaron v. State
    • United States
    • Alabama Court of Appeals
    • November 29, 1966
    ...erroneous sentence merely voidable is reviewable otherwise. See Ex parte Jenkins, 38 Ala.App. 117, 76 So.2d 858; 4 Thomas v. State, 40 Ala.App. 697, 122 So.2d 535. In Isbell v. State, 42 Ala.App. 498, 169 So.2d 27, a coram nobis appeal, we affirmed though the punishment which led to origina......
  • State v. McCurley, 1 Div. 227
    • United States
    • Alabama Court of Criminal Appeals
    • March 17, 1981
    ...corpus will lie where the invalidity of the prior court judgment shows on its face some fundamental illegality. Thomas v. State, 40 Ala.App. 697, 122 So.2d 535 (1960). If the invalidity of a judgment does not show on the face of the record proper (the indictment, judgment, etc.), but must b......
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