We remand these causes to the circuit court for proceedings consistent with the opinion of the United States Supreme Court in Sanders v. Alabama, 377 U.S. 125, 84 S.Ct. 1141, 12 L.Ed.2d 174, reversing Sanders v. State, 42 Ala.App. 67, 152 So.2d 439, and Ala.App., 155 So.2d 535.
Without elaborating, the Supreme Court simply cites Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899; and Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.
In a case that goes by certiorari from a state judicial system before the Federal court of last legal resort, there are two actual records. One court may not have seen what is before the other. Title 28, U.S.C. § 1257(3); Supreme Court Rule 23.
Thus, the state court trial and appellate record presumably—at least in pertinent part—is appended to the petition to the United States Supreme Court.
There can, accordingly, be a gap of controlling factual premises because the state court has not always been apprised of the proceedings beyond its own files.
In this Court
With this preface, we proceed to review what has been put before us. We list in reverse chronological order:
1. Circuit Court Case No. 749 (our 3 Div. 142):
The Record Before the United States Supreme Court
From the Attorney General's file, we consider the following to have been before the Supreme Court of the United States:
The Record Proper
Circuit Court Cases 740 and 749
The indictments of November 9, 1962, were for first degree forgery in falsely making, etc., or uttering a check for $150.00.
Sanders attended by counsel was arraigned on these indictments November 13, 1962, and pled not guilty in each case.
Circuit Court Case No. 749 (Our 3 Div. 142)
The court ordered trial set for November 20.
In an unverified motion filed in open court November 21, 1962, counsel for Sanders moved that the cause be continued. This prayer was based on the claim:
The court denied the motion: the record fails to show tha any evidence was tendered or promised to substantiate insanity.
Next, counsel, in writing, sought leave to withdraw because: (1) for the past three months he had been Sanders's attorney in "many matters of a civil nature"; (2) he (counsel) had that summer contracted amoebic dysentery causing him to lose thirty pounds and was currently suffering from an attack; and (3) that on November 19 he had spent the whole day in another case. No physician's affidavit was attached to this document.
On the court's denying this request, counsel then filed another request for leave to withdraw. This was based on the belief that Sanders had failed to make restitution to the merchants and shopkeepers. Restitution was alleged to be the moving cause of counsel's taking the employment.
The record then shows the empaneling and swearing of a petty jury a verdict finding Sanders guilty of forgery in the first degree, adjudication, allocutus and a sentence of thirteen years imprisonment. This term is within the statute. Code 1940, T. 14, § 207.
The remaining entries pertain to Sanders's request for a free transcript of testimony. This request was denied.
Circuit Court Case No. 740 (Our 3 Div. 149)
This case was tried February 26, 1963. On February 24, Sanders had moved for a continuance pending the outcome of his appeal in the other case, averring also:
Sanders also moved (1) to quash ("dismiss") all indictments because the Grand Jury was tainted by systematic exclusion of citizens qualified to vote; (2) to seek pretrial mental examination; and (3) to have a change of venue. All motions were overruled by the court.
Thereupon, Sanders demurred on the ground that the indictments "do not charge on their face the offense of forgery and that passing worthless checks in (sic) not an indictable offense under the Alabama Forgery Statutes."
This demurrer was correctly overruled. The indictment was in Code form (No. 63, T. 15, § 259), and phrased alternatively as to forging, etc., or knowingly uttering a forged instrument, etc. Curtis v. State, 9 Ala.App. 36, 63 So. 745; Terry v. State, 29 Ala.App. 340, 197 So. 44; Ex parte State, 213 Ala. 1, 104 So. 40.
Sanders also filed a plea of double jeopardy because the State had introduced the alleged counterfeit check in evidence on the trial of Circuit Court Case No. 749 (3 Div. 142). Uttering other checks is admissible to show a scheme. Christison v. State, 41 Ala.App. 192, 142 So.2d 666 (headnote 2). Anno. 34 A.L.R.2d 777.
It is uncontradicted that, after arraignment, Sanders had no lawyer in Circuit Court Case No. 740 (our 3 Div. 149). The judgment entry shows a jury and verdict of guilt, adjudication, allocution and sentence of eight years imprisonment.
However, other than the above quoted reference from his motion for continuance as to his needing "opportunity to contact relatives in Spain relative to employing counsel," Sanders made no claim of poverty. But see Keur v. State, Fla., 160 So.2d 546.
The appellate record was filed here April 3, 1963.
The action of the United States Supreme Court here coincides with the repeal of Act No. 62, September 15, 1961, which Sanders sarcastically called a collection of window dressing elements.
This latter act is now replaced by Act No. 525, September 16, 1963. In view of the response of the Supreme Court in Martin v. State, Ala., 167 So.2d 912, see also Martin v. State, Ala.App., 167 So.2d 915, we see no need to enlarge this opinion further on the procedural aspects of indigency, the right to counsel both at trial and on appeal and the right to present an appellate record. The provisions of these acts are to be liberally construed to accomplish the purposes of their enactment, i. e., to meet the objections of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892; Draper v. Washington, supra; Gideon v. Wainwright, supra; and Douglas v. California, supra.
Gideon v. Wainwright, supra, overruling Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, requires that a state not prosecute a man for "a crime"
Draper v. Washington, supra, reversing State of Washington v. Long, 58 Wn.2d 830, 365 P.2d 31, concerns itself with what is an adequate record for appellate review under Griffin v. Illinois, supra. The trial judge's power to censor or curtail the record under the need to suppress frivolity in appealing was rejected. Mr. Justice Goldberg said:
The third authority to which we are referred is Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. The holding there is that if a state, as of right, allows an appeal from a criminal conviction, it must afford a convicted pauper the right of free counsel so as to present the appeal.
Since the Supreme Court of the United States has only cited Gideon, Draper and Douglas, we shall only take up such of the questions, 1-12 (in IIB(2), above), as seem likely to arise again.
The composition of the grand jury was not timely raised
This court can and does decide appeals on the record proper. It is the responsibility of the appellant to get the appellate papers. If he is a pauper, then Acts No. 525 and No. 526, approved September 16, 1963, afford him the opportunity to ask for a free transcript of the record and of evidence as well as counsel in the appellate court. Counsel has the duty of developing the appellate record.
C. D. & E.
We pass over the questions raised under 3, 4 and 5 of IIB(2), above, as moot.
The transcript of evidence ordered on remand in 3 Div. 142 should contain the questions and answers embracing the testimony of defense counsel's secretary. We forego as premature any hypothetical discussion of the question of the extent of the attorney-client privilege.
To introduce—as we understand the claim—other checks which tend to show a similarity in the names used of maker, payee and bank can be done within the rules of evidence. See discussion above as to the circuit court's ruling on plea of double jeopardy (3 Div. 142) citing Christison v. State, 41 Ala.App. 192, 142 So.2d 666; Anno. 34 A.L.R.2d 777. We see no Fourteenth Amendment violation as shown on the present attenuated record.
Nothing appears of record that counsel in either case raised the question as to effect of the Circuit Judge being a member of the Jury Commission of Montgomery County.
Act No. 62, September 15, 1961, was repealed by Act No. 525, September 16, 1963, § 13. The latter being procedural in nature, affords the adjectival law of these cases for establishment of the right, if any, to a free transcript on the taking of an appeal.
Sanders's claim that he was put to trial within ten minutes after the court appointed him counsel is valid. However, its fallacy lies in the fact the counsel so appointed was the same attorney who had been Sanders's attorney of record from arraignment.
As we understand the practice of the Federal courts, lawyers are obliged to accept the representation of indigent defendants without leave to resign. That the state court compelled a lawyer already hired to go on with a case, does not, prima facie, show an abuse of discretion rising to a denial of due process, at least as to the client. Palpably the filing of previously prepared written motions would support an inference of a design to obtain a continuance.
In many courts it is the practice of one judge to call the docket for cases ready for trial, leaving the other judges free either to try cases or handle other business. A question similar to Sanders's was raised in Ex parte Powell, 39 Ala.App. 423, 102 So.2d 923. There we said:
In view of the orders of remandment herein, we forego any further discussion as to the point at which, in the course of a trial, one judge can be substituted for another.
The time for pleading to an indictment is fixed by Code 1940, T. 15, Ch. 13, particularly §§ 278 and 279. As to pleading irresponsibility, § 423 reads:
Sanders's merely having been sent to the medical center operated by the Federal Prison Bureau at Springfield, Missouri, is not of controlling evidentary force. Hawkins v. State, 267 Ala. 518, 103 So.2d 158. See also Coffman v. United States, 10 Cir., 290 F.2d 212.
We quote from Hughes, Criminal Responsibility, 16 Stanford L.Rev. 470, 482:
In Pearson v. State, 41 Ala.App. 366, 133 So.2d 60, this court stated:
Cf. Wear v. United States, 94 U.S.App. D.C. 325, 218 F.2d 24.
3 Div. 142
In 3 Div. 142 (Circuit Court No. 749), the judgment of conviction must stand pending appeal.
The orders of the circuit court of January 25, 1963, and of April 26, 1963, denying Sanders a free transcript are hereby reversed and the cause is there remanded for further proceedings agreeably herewith and under the provisions of Acts No. 525 and No. 526, supra, including but not limited to, First, the ascertainment and finding of:
and, Second, the giving to Sanders (and counsel, if any) ten days strict notice under paragraph 1 of § 8, Act No. 525, of his opportunity to file a petition for a free transcript at public expense.
3 Div. 149
In 3 Div. 149 (Circuit Court No. 740), the judgment of conviction is reversed and the cause is remanded to the circuit court for new trial, and, if appointed counsel is asked for, an initial determination of Sanders's indigency and need and desire for appointment of counsel.
3 Div. 142 Remanded with directions.
3 Div. 149 Reversed and remanded.
3 Div. 142
3 Div. 149
Motion to allow personal appearance before this court on remandment of these causes from the Supreme Court of the United States denied. Rule 4, Supreme Court of Alabama; Code 1940, T. 13, § 23.
We consider these causes remain in fieri on the submission heretofore made— though with our former judgments no longer of force and effect. Hence, no further argument, either from the appellant or the State, is permissible under the Rules of the Supreme Court of Alabama, excepting only such as might be made in support of an application for rehearing of the judgments this day made. See Artrip v. State, 41 Ala. App. 492, 136 So.2d 574.
3 Div. 142
Motion to fix bail at $750.00 is denied. Code 1940, T. 15, § 369, as amended.
Bail fixed at $13,000.00 pending appeal is to remain in effect until application for reduction is made to the Circuit Court of Montgomery County.
Post conviction bail is not affected by Constitution 1901, § 16. In a pre-conviction case, we recently approved a reduction of bail from $25,000 to $12,500 on each of three indictments for second degree burglary and grand larceny. Wade v. State, Ala.App., 166 So.2d 739. There we stated:
We forego deciding whether Sanders is admissible to bail under § 369, as amended, supra.
Motion denied without prejudice to apply to the Circuit Court for reduction in amount of bail pending appeal.
3 Div. 149
Motion to fix bail at $750.00 is prima facie valid because of the reversal of the judgment of conviction. The order of the circuit court fixing bail pending trial at $750.00 is automatically reinstated.
In the instant cases, however, in both records, Sanders is shown to have had a white lawyer with him on arraignment, and, although it does not show in the records before us, he has stated in brief for one of his many applications that he is white.
Accordingly, whether or not Negroes are systematically excluded from the jury rolls of Montgomery County, Alabama, is not, as to Sanders, a pertinent denial of due process or equal protection under the Fourteenth Amendment of the Constitution of the United States. Moreover, the basis for this claim is only indirectly that Negroes are excluded since the claim is rested on the pendency of a voter registration action in the U. S. District Court for the Middle District of Alabama. Being an elector or not being an elector is irrelevant to a man's being a juror in Alabama. Code 1940, T. 30, § 21, as amended.