Vernon v. State

• Decision Date: 20 February 1941
• Docket Number: 3 Div. 340.
• Citation: 240 Ala. 577,200 So. 560
• Parties: VERNON v. STATE.
• Court: Alabama Supreme Court

200 So. 560

240 Ala. 577

VERNON v. STATE.

3 Div. 340.

Supreme Court of Alabama

February 20, 1941

Rehearing Denied Feb. 27, 1941.

Appeal from Circuit Court, Montgomery County; Eugene W. Carter Judge.

Proceeding by Joe Vernon against the State for a writ of habeas corpus. From an order or judgment denying the writ, petitioner appeals.

Affirmed.

Walter S. Smith and Cora R. Thompson, both of Birmingham, for appellant.

Thos S. Lawson, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.

BROWN Justice.

This appeal is from an order made by the Honorable Eugene W Carter, Judge of the Circuit Court of Montgomery County, after a hearing on writ of habeas corpus, remanding the petitioner, Joe Vernon, appellant here, to the custody of Earl R. Wilson as Warden of Kilby Prison, pending his execution for the murder of Bennie Montgomery in pursuance of his trial, conviction and sentence in the Circuit Court of Jefferson County, Alabama. Code 1923, § 4310; Vernon v. State, 239 Ala. 593, 196 So. 96; Joe Vernon v. State of Alabama, 61 S.Ct. 135, 85 L.Ed. 449; Id, 61 S.Ct. 390, 85 L.Ed. 475; In re Joe Vernon, Petitioner, Ala.Sup., 199 So. 809.

The appeal is authorized by § 3238 of the Code of 1923, as last amended by Act No. 122, approved April 14, 1936, Acts General and Local Extra Session 1936, p. 81.

On the hearing before Judge Carter, Warden Wilson, in response to the writ of habeas corpus, produced the petitioner in person, and made due return in writing, and under oath, showing that said petitioner, Joe Vernon, was regularly indicted by a grand jury of the Circuit Court of Jefferson County, Alabama, on November 12, 1938, said indictment charging "that before the finding of this indictment, Joe Vernon, unlawfully, and with malice aforethought, killed Bennie Montgomery by shooting him with a pistol, against the peace and dignity of the State of Alabama." The indictment, a copy of which is attached to the petition for the writ of habeas corpus, is in the form prescribed by the statute, in such cases made and provided by Code 1923, § 4556, p. 489, Form 76, indorsed "A True Bill, Hubert S. Atchison, Foreman of the Grand Jury," was presented in open court by the grand jury, and filed by the clerk of the court.

The return further shows that on the thirty-first day of December, 1938, petitioner appeared with his attorney, was duly arraigned and entered a plea of not guilty; that the court by order set Monday the 9th day of January, 1939, as the day for his trial.

"On the 9th day of January, 1939, the petitioner being represented by able and experienced counsel of his own selection and employment, the case was regularly tried before a jury in the Circuit Court of Jefferson County. No question was raised on or before the trial as to the formation of the grand jury that presented the indictment, or as to its regularity. No objection was entered as to the venire for the trial or the formation of the petit jury selected and impaneled therefor."

The trial was entered upon on the day set therefor, with defendant and his counsel in attendance, without objection or exception and without motion for postponement or continuance.

The jury, after hearing the case, returned a verdict of guilty of murder in the first degree, as charged in the indictment, and fixing the punishment at death. A judgment of conviction and sentence in accordance with the verdict of the jury was duly entered. The judgment entry recites:

"This the 9th day of January, 1939, came Geo. Lewis Bailes Solicitor, who prosecutes for the State of Alabama, and also came the defendant in his own proper person and by attorney, and said defendant being in open Court, and being duly arraigned upon the indictment in this cause for his plea thereto, says that he is not guilty, and issue being joined on said plea, thereupon came a jury of good and lawful men, to-wit, J. C. Arthur and eleven others, who being empanelled and sworn according to law, before whom the trial of this cause was entered upon and continued from day to day and from time to time, said defendant being in open Court at each and every stage and during all of the proceedings in this cause, now on this the 10th day of January, 1939, said jurors upon their oaths do say: 'We the jury find the defendant guilty of Murder in the first degree as charged in the indictment, and fix his punishment at death.'

" 'And on this the 12th day of January, 1939, said defendant, Joe Vernon, being in open Court, and having been convicted by a jury of Murder in the First Degree, and his punishment fixed by said jury at death, and said defendant, Joe Vernon, being asked by the Court if he had anything to say why the judgment of the Court and sentence of the Law should not now be pronounced upon him, says nothing. It is therefore considered by the Court, and it is the judgment of the Court, that said defendant, the said Joe Vernon, is guilty of Murder in the First Degree, in accordance with the verdict of the jury in this cause, and it is the judgment of the Court and sentence of the Law, that the said defendant the said Joe Vernon, suffer death by electrocution on the 17th day of March, 1939, and the Sheriff of Jefferson County is directed to deliver the defendant, the said Joe Vernon, to the Warden of Kilby Prison at Montgomery, Alabama, and said Warden of said Kilby Prison shall on the 17th day of March, 1939, before the hour of sunrise, in said prison, and on said day, cause a current of electricity of sufficient intensity to cause death to pass through the body of said Joe Vernon until he is dead.

" 'It is further considered by the Court that the State of Alabama have and recover of the said defendant the costs in this behalf expended, including the costs of feeding the defendant while in jail, for which let execution issue.' "

The proceedings of the Circuit Court of Jefferson County, were reviewed on his appeal here and were held to be in all things regular and free of reversible errors. Vernon v. State, supra.

The appellant, on the hearing before Judge Carter, contended that though on examination and search of the record and proceeding of the Circuit Court of Jefferson County, the proceeding on the trial, the judgment, conviction and sentence on their face, appear in all things regular, it is permissible on the hearing under the writ of habeas corpus, to look behind the indictment, trial and judgment of conviction, and by parol evidence show "that there has never been any negroes placed on the Grand Juries of Jefferson County, although there is a large per centage of negro population in that county;" and he offered to adduce evidence to that effect [Record, p. 9]; and nothing more. On the hearing appellant made the contention that on such predicate he was entitled to be discharged from custody. That contention is here renewed.

Confessedly this is a collateral attack on the judgment and proceeding of a court of constitutional creation, and of competent jurisdiction of the offense, and on the face of the proceedings, the court had jurisdiction of the person. Constitution 1901, [Alabama] Art. VI, § 143.

The contention is predicated on the concept that the Fourteenth Amendment of the Constitution of...