Correspondence from Whelan to Tegeler Re: Expert List

    TRANSCRIPT OF RECORD

Supreme Court of the United States

OCTOBER TERM , 1960

No. 640

CHARLES CLARENCE HAMILTON, PETITIONER,

vs.

ALABAMA.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF ALABAMA

PEETITION FOR CERTIORARI FILED NOVEMBER 11, 1960 
CERTIORARI GRANTED JANUARY 9, 1961



Suprem e Court of the United States

CHAELES CLAEENCE HAMILTON, PETITIONEE,

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OCTOBER TERM, 1960

No. 640

vs.
ALABAMA

OF THE STATE OF ALABAMA

INDEX

Original P rin t

Record from the Supreme Court of the State of 
Alabama

Petition for w rit of error coram nobis .........  1 1
Exhibit “A”—Affidavit of Clell I. Mayfield.. 5 4
Exhibit “B”—Trial docket sheet in No.

98,512 ...............     6 5
Exhibit “C”—Trial docket sheet in No.

98,942 ....................... - .................................... 7 7
Petition for stay of execution ......    8 8
Executive order granting reprieve --------  10 10
Answer to petition for w rit of error coram

nobis .....        12 12
Exhibit “A”—Affidavit of Clell I. Mayfield.. 14 13
Exhibit “B”—Affidavit of Cecil M. Deason.. 15 14
Exhibit “C”—Memorandum opinion and 

judgment of United States D istrict Court 
for the Middle D istrict of Alabama in 
the case of Ex Parte William K. Powell.. 16 16



11 INDEX

Original Print
Order of submission ...............................................  24 26
Opinion, Lawson, J. ...............................................  25 27
Order denying petition for leave to file petition 

for w rit of error coram nobis ........................  37 36
Petition for stay of execution ............................  38 37
Order staying execution, etc.................................  40 38
Clerk’s certificate (omitted in printing) ............ 41 39

Order granting motion for leave to proceed in 
forma pauperis and granting petition for w rit 
of certiorari .................    42 40



1

[fol. 1]

IN THE SUPREME COURT OF ALABAMA

Sixth Division No. 604 

E x  p a r t e :— Charles Clarence H amilton

P etitio n  for W rit  op E rror C oram N obis

To the Honorable Chief Justice and the Associate Justices 
of the Supreme Court of Alabama

Your Petitioner, Charles Clarence Hamilton, respect­
fully represents and shows unto this Honorable Court 
the following facts upon which the Petitioner seeks affirm­
ative relief, to-wit:—

1. On the night of October 12, 1956, or the morning of 
October 13, 1956, in Ensley, Alabama, petitioner, a Negro, 
was found in the bedroom of Mrs. Mary Giangrosso, an 
elderly white woman, by her granddaughter’s husband, 
Mr. Jacob Milko, who held petitioner at gun point, and 
called the police. [Hamilton v. State, 116 So. 2d 906]. 
Petitioner was arrested, arid subsequently indicted by a 
Grand Jury of Jefferson Comity, Alabama, on to-wit: 
November 9, 1956, for burglary in the nighttime with in­
tent to steal, which cause was docketed on November 13,
1956, in the Circuit Court of Jefferson County, Alabama, 
as State of Alabama vs. Charles Clarence Hamilton, Case 
No. 98512. [See Exhibit “B” certified copy of Trial 
Docket Sheet, attached hereto, and made part hereof]. 
On arraignment, on to-wit: January 4, 1957, the date of 
arrignment, the Honorable Clell I. Mayfield, a practicing 
lawyer, with offices in Birmingham, Jefferson County, 
Alabama, was appointed to defend petitioner and entered 
a plea of not guilty, and trial was set for January 14,
1957. Trial date was subsequently passed to March 12, 
1957, then to March 13, 1957; to April 23, 1957, and final­
ly to April 24, 1957, when the case was nolle prossed on 
recommendation of the Solicitor. [See Exhibit “B”]

Subsequent to November 9, 1956, and while the above 
said cause was pending, the Grand Jury of Jefferson



2

[fol. 2] County, Alabama, on to-wit: February 12, 1957, 
indicted petition for Burglary with intent to Steal, and 
Burglary with intent to Ravish [See Exhibit “C”], and the 
case was subsequently Docketed on to-wit: February 12, 
1957, in said court as State of Alabama vs. Charles Clar­
ence Hamilton, No. 98942. On March 1, 1957, petitioner 
was arraigned in this cause, and entered a plea of not 
guilty [See Exhibit “C”]. On to-wit: March 4, 1957, the 
Honorable Cleli I. Mayfield was appointed by the Court 
to defend petitioner [Exhibit “C”].

2. After a trial by Jury, defendant was found guilty 
of Burglary in the nighttime with intent to ravish and 
his punishment fixed at death by electrocution. On appeal 
to this Honorable Court under the automatic appeal stat­
ute, the judgment of the trial Court was affirmed. Hamil­
ton vs. State, 116 So. 2d 906. Petitioner’s application for 
rehearing was denied on to-wit: January 21, 1960. On 
the 20th day of May, 1960, petitioner applied to the 
United States Supreme Court for Writ of Certiorari to 
this Honorable Court which application wras denied on 
to-wit: June 28, 1960.

The transcript of the record filed in this Honorable 
Court on above said appeal [Charles Clarence Hamilton 
vs. State of Alabama, Sixth Division No. 164], set out 
the minute entry on page 1 which recited that petitioner 
wras represented on arraignment by attorney. Petitioner 
attacked the minute entry on appeal in this Honorable 
Court and in the United States Supreme Court on Peti­
tion for Writ of Certiorari, as being in error, and offered 
in support thereof, the Judge’s minute entry, which re­
cited that the attorney for petitioner was not appointed 
until March 4, 1957. [Hamilton v. State, 116 So. 2d, 906].

3. This Honorable Court held in the above said appeal 
that although it had no argument with appellant’s con­
tention, that in capital cases defendant is entitled to 
effective counsel from time of arraignment throughout 
the trial—and that denial of such was a violation of the 
equal protection and due process clause of the Fourteenth 
Amendment to the United States Constitution, and Sec­
tions 1 and 6 of the Constitution of the State of Alabama, 
but that the principle was without application to the rec­
ord before it. The ruling of the Court was sustained in



3

the opinion of Mr. Chief Justice Livingston, by the prin­
ciple, supported by numerous cases, that the minute entry 
of record may not be impeached by the Judge’s bench 
[fol. 3] notes. — [Hamilton v. State, 116 So. 2d 906]. 
Subsequent to the said appeal, petitioner’s attorneys, on 
to-wit: July 19, 1960, were finally able to obtain from the 
Honorable Clell I. Mayfield, attorney of record on peti­
tioner’s trial, an affidavit to the effect that according to 
his knowledge, information and belief, he was not ap­
pointed in case No. 98942 wherein petitioner was tried and 
convicted for nighttime burglary with intent to ravish, 
and sentenced to death by electrocution, until March 4, 
1957; that he did not represent petitioner on arraignment, 
nor consult or advise with him. Mr. Mayfield’s said affi­
davit is made a part hereof and attached hereto as Ex­
hibit “A”.

4. Petitioner’s right to Counsel at the time of arraign­
ment was fundamental. Mr. Mayfield’s affidavit attached 
hereto and made a part hereof clearly proves that the 
judgment of the court below -was a nullity ; that petitioner, 
under the circumstances was denied his right to a fair 
trial and to due process of law as guaranteed him by the 
laws and Constitution of the State of Alabama and the 
Fourteenth Amendment to the Constitution of the United 
States of America.

P rem ises C onsidered, Charles Clarence Hamilton prays 
that this Honorable Court will enter an order granting to 
him the right to file a petition in the Circuit Court of 
Jefferson County, Alabama, for a Writ of Error Coram 
Nobis to inquire into the facts alleged herein and if the 
relief prayed for herein is not just, and proper, then, in 
that event, Charles Clarence Hamilton prays for such 
other, further, general or special relief as may with the 
Court seem meet and proper, and as in duty bound peti­
tioner will ever pray.

/s /  Charles Clarence Hamilton 
Petitioner
Orzell Billingsley, Jr.
Peter A. Hall 
Attorneys for Petitioner 
1630-4th Avenue, North 
Birmingham, Alabama



4

[fo l. 4] V erification  O m itted  i n  P r in tin g

Certificate  of S ervice O m itted  in  P rin tin g  

[fol. 5] P e titio n er ’s E x h ib it  “ A ” to P etitio n  

S tate of A labama )

J efferson  County  )

A ffidavit

Clell I. Mayfield, being an attorney licenses to practice 
in the State of Alabama, does hereby state that he was 
the attorney of record for Charles Clarence Hamilton in 
the Circuit Court of Jefferson County, Alabama, Tenth 
Judicial Circuit. That he was initially appointed as coun­
sel for the defendant on January 4, 1957, in case number 
98512, State of Alabama vs. Charles Clarence Hamilton 
which case was nolle prossed on April 24, 1957. That 
prior to April 24, 1957, to-wit: March 4, 1957, the said 
attorney was appointed as counsel for the defendant in 
case number 98942, State of Alabama vs. Charles Clarence 
Hamilton. That said attorney states to the best of his 
knowledge, information and belief that he was not present 
at the arraignment of said Charles Clarence Hamilton 
on March 1, 1957. Said attorney further states that he 
did not advise or consult with said defendant at the ar­
raignment of March 1, 1957.

/s /  Clell I. Mayfield 
Clell  I. M ayfield

Personally appeared before me Jefferson D. Boling, a 
Notary Public for the State of Alabama, Jefferson 
County, Clell I. Mayfield, who first being sworn states the 
above facts to be true to the best of his knowledge, in­
formation and belief.

Sworn to and subscribed on this the 19th dav of July, 
1960.

/s /  Jefferson D. Boling 
[seal] Notary Public



[fo l. 6] 5
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[fo l. 7]

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P etitio n er’s E x h ib it  “ 0 ” to P etition

PARTIES

THE STATE 

VS.

Charles Clarence Hamilton

CASE DOCKETED

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8

IN THE SUPREME COURT OF ALABAMA, 
SIXTH DIVISION

No-164

(Title Omitted)

P etitio n  fob S tay of E xecution— Filed July 27, 1960
Comes no'w the appellant in the above-styled cause, by 

his attorneys, and petitions the Honorable Court to sus­
pend execution of the sentence heretofore rendered in 
this case, and to stay execution of the Death Sentence 
heretofore set for July 29, 1960, and as grounds for said 
petition appellant shows the Honorable Court the fol­
lowing

1. That appellant was tried for and convicted of the 
crime of First Degree Burglary with the intent to ravish 
by the Jefferson County, Alabama, Circuit Court on to- 
wit: the 24th day of April, 1957, and sentenced to be 
executed in the electric chair.

2. That on appeal, this Honorable Court affirmed the 
Judgment of the Circuit Court and on to-wit: the 21st 
day of January, 1960, denied his petition for rehearing.

3. Petitioner’s application to the United States Su­
preme Court for Certiorari was denied on to-wit: June 
28, 1960.

4. On appeal in this Honorable Court and in the 
United States Supreme Court, petitioner citing the judge’s 
bench notes urged, among other things, that he had been 
denied a fair trial and due process of law as guaranteed 
him by the statutes and sections 1 and 6 of the Constitu­
tion of the State of Alabama, and the Fourteenth Amend­
ment to the Constitution of the United States, in that he 
had not been represented by counsel on arraignment. 
Although a pro forma recitation in the record indicated 
that he had been so represented.

5. On to-wit: July 19, 1960, present attorneys for peti­
tioner were for the first time, able to obtsin an affidavit

[fol. 8] (F ile  E ndorsem en t O m itted)



9

from the Honorable Clell I. Mayfield, petitioner’s attorney 
of record on the trial below, to the effect that to the best 
[fol. 9] of his knowledge, information and belief, he was 
not appointed to represent petitioner in the cause in which 
he was convicted and sentenced to death by electrocution, 
until after his arraignment, and that he did not consult 
with him or advise him on said arraignment.

The said affidavit is attached to a petition for Writ of 
Error Coram Nobis to be filed in this Honorable Court. 
A signed copy is attached hereto and made a part hereof.

Petitioner intends forthwith, to make application to 
this Honorable Court, for leave to file his petition for 
Writ of Error Coram Nobis, and that the execution of 
the Sentence in this cause set for July 29, 1960, should be 
suspended until this Honorable Court has passed upon 
this matter.

/ s /  Orzell Billingsley, Jr. 
Peter A. Hall

Duly Sworn to by Orzell Billingsley, Jr. and Peter A. Hall 
(Jurats Omitted in Printing)



10

STATE OF ALABAMA 
Office of the Governor

[fol. 10] (F ile  E ndo rsem en t O m itted)

N ame

C ounty

Offe n se

C onvicted

S en ten ce

C harles Clarence H amilton  

J efferson

B urglary—1st Degree 
A pr il  24, 1957 
D ea th—July 29, 1960

E xecutive Order Granting  R eprieve— July 28, 1960

It is hereby ordered by me, as Governor, that reprieve 
be, and it is hereby granted to Charles Clarence 
Hamilton until Friday, August 19, 1960, at which 
time, unless otherwise ordered, let the sentence of 
death be executed.

L et  Order I ssue A ccordingly.

No. 5
July 28, 1960 

I ssued
J uly  28, 1960

/s /  John Patterson 
G overnor

S ecretary of S tate



11

IN THE NAME AND BY THE AUTHORITY
of

THE STATE OF ALABAMA 
# * * #

I , J o h n  P atterson,

Governor of t h e  S tate of A labama,
& # # #

To all Sheriffs, Keepers of Prisons, Civil Magistrates 
and others to whom these Presents shall come— 
G reetings :—-

W hereas, at the April Term, 1957 of the .....................
Court held for the County of Jefferson Charles Clarence 
Hamilton was convicted of the crime of Burglary—1st 
Degree and sentenced to Death—July 29, 1960

A nd , W hereas, for divers good and sufficient reasons it 
appears to me that the said Charles Clarence Hamilton 
should be granted a reprieve is a fit subject for Executive 
Clemency;

Now, Therefore, I, John Patterson, Governor of the 
State of Alabama, by virtue of the power and authority 
in me vested by the Constitution and laws of the State 
of Alabama, do by these presents, order that reprieve be, 
and it is hereby granted to Charles Clarence Hamilton 
until Friday, August 19, 1960, at which time, unless other­
wise ordered, let the sentence of death be executed.

Witness my hand, and the Great Seal of 
the State at Office, in the City of Mont­
gomery, this 28 day of July, 1960.

[seal] / s/  John Patterson,
Governor of Alabama.

[fol. 11] (F ile  E ndo rsem en t O m itted)

By the Govenor:

/s /  Bettye Frink,
Secretary of State.



12

IN THE SUPREME COURT OF ALABAMA 

(Title Omitted)

A nsw er  to P etitio n  for W rit of E rror Coram N obis—  
Filed August 3, 1960

To the Honorable Chief Justice and the Associate Justices 
of the Supreme Court of Alabama:—

Comes now The State of Alabama, respondent in the 
above-styled cause by and through its Attorney General, 
and in answer to that petition for writ of error coram 
nobis heretofore filed by Charles Clarence Hamilton, a 
prisoner under sentence of death, declares the following

1. The petition lacks a probability of truth.
2. The petitioner was represented by counsel at the 

time of his arraignment on March 1, 1957, and such 
affirmatively appears of record and by exhibits. [See 
Exhibits A and B attached hereto and made a part 
hereof],

3. Non-representation of counsel at the time of arraign­
ment is not per se a denial of due process. The 
petitioner must make some showing or allegation of 
injury or prejudice to this cause. [See Exhibit C 
attached hereto and made a part hereof].

4. The petitioner has alleged no showing of prejudice 
and such affirmatively appears of record.

W herefore The State of Alabama does urge this Hon­
orable Court to deny the petition.

Respectfully submitted,

/&/ MacDonald Gallion 
Attorney General

/ s /  James W. Webb
Assistant Attorney General

[fol. 13] C ertificate of S ervice
Om itted  in  P rin tin g

[fol. 12] (F ile  E ndo rsem en t O m itted)



13

S tate of A labama )
J efferson  County  )

Clell  I. M ayfield , being an attorney licensed to prac­
tice in the State of Alabama, in addition and to further 
clarify that affidavit given to Orzell Billingsley, Attorney 
at Law, on the 19th day of July, 1960, does hereby state 
that he was the attorney appointed by the Circuit Court 
of Jefferson County, Alabama, Tenth Judicial Circuit, to 
defend Charles Clarence Hamilton; that lie was initially 
appointed as counsel for the defendant on January 4, 
1957, for an indictment of burglary in the nighttime with 
intent to steal, which case, after several continuances, was 
not pressed on April 24, 1957; that prior to April 24, 1957, 
on March 4, 1957, he was appointed as counsel for the 
defendant in a second indictment for burglary in the 
nighttime with intent to ravish; said attorney further 
states that he knew of the second indictment prior to its 
being returned by the Grand Jury, that he was aware of 
the indictment and the arraignment thereon, which oc­
curred on March 1, 1957; that he considered himself as 
representing the defendant for the second case and that 
said arraignment on March 1, 1957, wms done with his 
consent although he was not present at the arraignment ; 
that said attorney further states at that particular time 
he would not have entered any different plea than the plea 
that was entered by the defendant on March 1, 1957. Said 
attorney further states that at the time of March 1, 1957, 
arraignment on said second indictment, he considered the 
arraignment a mere formality, since the same plea would 
be entered that had been entered on the first arraignment 
to the first indictment which occurred on the 4th day of 
January 1957, and that was his reason for not attending 
the second arraignment.

Clell I. Mayfield

Sworn to and subscribed before me this 29th day of 
July, 1960.

Bobbie D. White
(seal) Notary Public

[fol. 14] E x h ib it  A  to A nsw er



14

S tate o f  A labama )
J efferson  C ounty  )

Cecil  M. D eason, being a Deputy Circuit Solicitor for 
the Tenth Judicial Circuit of Jefferson County, Alabama, 
does state that he was the Deputy Circuit Solicitor who 
prosecuted the case against Charles Clarence Hamilton in 
the Circuit Court of Jefferson County. Mr. Deason fur­
ther states that he was assigned said case prior to the 
first arraignment on the first indictment and realized at 
that time that the defendant would have to re reindicted, 
since the case was an obvious one of burglary in the 
nighttime with intent to ravish rather than burglary in 
the nithttime with intent to steal. Mr. Deason further 
states that sometime before January 15, 1957, he told Mr. 
Mayfield that the defendant would have to be reindicted 
to include a second count on a charge of burglary in the 
nighttime with intent to ravish; that he further informed 
Mr. Mayfield that the Grand Jury would meet and would 
return an indictment containing the two counts and that 
Mr. Mayfield understood and knew that the case was being- 
continued for the purpose of the Grand Jury returning 
another indictment and that after the Grand Jury had 
returned the second indictment, he informed Mr. Mayfield, 
the attorney representing the defendant, that a new in­
dictment had been returned and that the defendant would 
be re-arraigned and the case set for trial. Thereafter the 
defendant was arraigned after Mr. Deason had the con­
versation with Mr. Mayfield with reference to the new 
indictment. Mr. Deason further states that on March 1, 
1957, at the time of the second arraignment, he informed 
the court that Mr. Clell I, Mayfield was the attorney rep­
resenting the defendant and knew that the arraignment 
was to be held on that date and due to the fact that Mr. 
Mayfield had been originally appointed by Judge Wheeler 
on the 4th day of January 1957, wherein the defendant 
at that time was only charged with burglary in the night­
time with intent to steal and realizing that the first case 
would be nol porssed after the trial on the second case

[fo l. 15] E x h ib it  B  to A nsw er



15

and realizing further that the record would have to show 
in order for Mr. Mayfield to receive his fee from the 
State of Alabama for representing the defendant, Mr. 
Deason requested Judge King to let the record reflect the 
fact that Mr. Mayfield had been formally appointed in the 
second case so there would be no question about his re­
ceiving his fee for representing the defendant and this 
occurred on March 4, 1957.

Cecil M. Deason

Sworn to and subscribed before me on this 29th day of 
July, 1960.

Robbie D. White
( s e a l ) Notary Public



E x h ibit  C to A nsw er

IN THE
DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA, 
NORTHERN DIVISION

Civil Action No. 1563-N 

Ex P arte W illiam  Iv . P owell

M emorandum  Op in io n  and J udgment

This cause is now submitted upon the pleadings, the 
stipulations entered into by and between the parties, the 
oral testimony taken before the Court and the exhibits 
to that testimony, and the briefs and arguments of the 
parties. Upon this submission, this Court now makes the 
appropriate findings and conclusions, as required by the 
Rules of Federal Procedure, embodying the same in this 
memorandum.

The petitioner, William K. Powell, presently in custody 
of the State of Alabama in this district at Kilby Prison, 
Montgomery, Alabama, institutes this litigation by filing 
his petition in this Court, as authorized by §§ 2242 and 
2254, Title 28 of the United States Code. Powell, in his 
petition, sought and was granted a hearing upon his ap­
plication for writ of habeas corpus; this Court originally 
denied Powell’s petition without a hearing, but later, and 
in accordance with the mandate of the Supreme Court of 
the United States, ordered that Powell’s application for 
a hearing be granted. The matter was accordingly set 
for a full hearing, and a full hearing was held here in 
Montgomery, commencing at 9:00 a.m., January 19, 1960. 
Witnesses were subpoenaed and testified for both sides.

The basis for Powell’s complaint is that his imprison­
ment and confinement by the State of Alabama, said im­
prisonment being for a period of ten years and having 
been imposed by the Circuit Court of Jefferson County, 
Alabama, on January 26, 1956, is in violation of his con­
stitutional rights as a citizen, as guaranteed by the laws 
and by the Constitution of the United States. Specifically,

16

[fol. 16] F iled  M ar. 4, 1960. R. C. Dobson, C lerk



17

Powell alleges that his trial and conviction held in the 
Circuit Court (Tenth Judicial Circuit for the State of 
Alabama) of Jefferson County, Alabama, wherein he was 
charged with and convicted of the offense of robbery 
(Title 14, §415, 1940 Code of Alabama, as amended), was 
in violation of his constitutional rights in the following 
respects:

(1) His conviction and subsequent imprisonment was in 
violation of due process of law, since the State of Ala­
bama, acting through the Circuit Court of the Tenth 
Judicial Circuit, refused him his right to plead and be 
heard upon his plea of “not guilty by reason of insanity.” 
[fol. 17] (2) That he was deprived of due process be­
cause he was not represented by counsel at his arraign­
ment on the charges he was tried and convicted of. (This 
includes his contention that he was not represented by 
competent counsel.)

(3) That he was deprived of due process because of the 
failure of the State to have him present or permit him 
to be present in open court in all stages of the proceed­
ings that resulted in his conviction and imprisonment.

(4) That he was denied a fair and impartial trial by 
the State of Alabama, which trial resulted in his convic­
tion and imprisonment, by the admission of certain ex­
hibits (gun, bullets, blackjack, gloves and mask) not used 
in or connected with the alleged offense, and that he was 
denied the right to present proper and vital testimony 
and evidence in support of his defense upon the trial of 
that case.

(5) That he was tried and convicted upon the uncor­
roborated and perjured testimony of an alleged accom­
plice.

(6) That he was subject to mental and physical coer­
cion by the State of Alabama police authorities to the 
extent that he feared and failed to testify in his own 
defense.

(7) That the State of Alabama, acting through its 
agents, suppressed vital evidence during the trial result­
ing in his conviction.

(8) That he was denied a fair and impartial trial, since 
the Circuit Judge of the Tenth Judicial Circuit that pre­



18

sided at his trial failed and refused to submit the ques­
tion of venue to the jury.

(9) That he was deprived of vital and true testimony 
because of the intimidation and threats made and directed 
toward certain defense witnesses by the State authorities.

To each of these contentions, separately and severally, 
the State of Alabama and/or the custodians of William 
K. Powell plead the general issue. I t was understood by 
all concerned, and reflected by this Court’s pre-trial order 
entered herein on January 7, 1960, that this plea of gen­
eral issue included a specific denial as to each contention 
made by Powell and a general denial that the trial and 
the proceedings leading up to the trial, the conviction and 
confinement complained of by Powell, were not and are 
not in violation of any of his constitutional rights, as 
guaranteed him by the laws and the Constitution of the 
United States.

In September of 1955, the petitioner, William K. Powell, 
together with James R. Hatt, was arrested in a rooming 
house at Leeds, Alabama, by State law enforcement offi­
cers, one of whom was B. M. Dinkin of Jefferson County, 
Alabama. Both of these men were taken into custody, 
carried to Birmingham, Alabama, and shortly thereafter 
[fol. 18] indicted for violating Title 14, § 415 of the 1940 
Code of Alabama, which section relates to the offense of 
robbery and provides that upon conviction, punishment 
shall be, at the discretion of the jury, by death or im­
prisonment for not less than ten years. In October of 
1955, the Honorable L. Drew Redden, a practicing attor­
ney of Birmingham, Alabama, was employed by Powell’s 
family for the limited purpose of securing, if possible, 
an order of the court providing for a psychiatric exami­
nation of William K. Powell. Redden was not employed 
and did not undertake the general defense of William K. 
Powell as to the charge of robbery. Such a motion was 
filed, and the court on October 25, 1955, by consent of the 
circuit solicitor, ordered that Dr. Frank A. Kay, a special­
ist in mental diseases, examine Powell and report his 
findings to the court in writing. It is without dispute 
that Powell, prior to this time, had been a patient in 
several mental institutions and had received psychiatric



19

treatment from several such institutions. Prior to an 
examination being made by Dr. Kay and on November 
23, 1955, Powell was arraigned in open court upon the 
indictment, and to said indictment entered a plea of not 
guilty. This Court specifically finds that at the time this 
plea was entered Powell was not represented by counsel. 
However, on the same day and during the same court 
appearance and shortly after Powell entered a formal 
plea of not guilty, the Circuit Court of Jefferson County, 
as provided by statute, appointed Robert Collins and 
Harold Bowron, Jr., two young attorneys of Birmingham, 
Alabama, to represent Powell in his case. Prior to the 
time these attorneys were appointed and while Powell 
was before the court, Powell requested the court, or at­
tempted to request the court, to have an inquisition con­
ducted as to his sanity. Such an inquisition is author­
ized by the Alabama criminal procedure and is set out in 
Chapter 21, Title 15 of the 1940 Code of Alabama, as 
amended. No action (in addition to that already taken) 
was taken by the court at this time on this request. 
Mr. Redden, upon learning of Powell’s arraignment prior 
to the psychiatric examination being conducted by Dr. 
Kay, consulted with attorneys of the office of the circuit 
solicitor of Jefferson County, Alabama, and the solicitors 
agreed that the arraignment could be set aside of Powell’s 
court-appointed attorneys for his general defense, Bowron 
and Collins, decided to take such action. Mr. Redden and 
the court-appointed attorneys, Bowron and Collins, con­
ferred with Powell, and it was agreed by all concerned 
that issue would be joined on the plea of not guilty with­
out any attempt being made to enter a formal plea of 
“not guilty by reason of insanity” and without any attempt 
being made to pursue the psychiatric examination that 
had been ordered by the court on October 25, 1955. This 
[fob 19] Court further finds that sometime prior to the 
last of December, 1955, Dr. Kay attempted to perform 
the psychiatric examination, but Powell refused, and the 
matter was not pursued any further.

From the time of the arraignment and the appointment 
of attorneys Bowron and Collins, until the date of the 
trial commencing on January 25, 1956, this case was con­



20

tinued twice by order of the court and upon the motion 
of the circuit solicitor for Jefferson County. In the 
meantime, the defendant Hatt had employed private coun­
sel, and his case was also continued twice. From the 
date of their appointment on November 23, 1955, until 
January 25, 1956, the court-appointed attorneys, Bowron 
and Collins, both of whom were young and inexperienced, 
conducted a very thorough and painstaking investigation 
into both the facts and the law that were applicable in 
Powell’s case. Upon the trial of Powell’s case, the co­
defendant Hatt testified for the State, and William K. 
Powell was found guilty, by the jury, of robbery and 
was sentenced to the penitentiary of the State of Alabama 
for a term of ten years. The judgment pronuonced there­
on wras appealed and affirmed by the Alabama Appellate 
Courts.

As to the contentions now raised by petitioner Powell, 
this Court specifically finds that Powell was not repre­
sented by counsel on November 23, 1955, when he entered 
his formal plea of not guilty. However, on the same date 
and at the same court appearance, counsel was appointed 
for Powell and did effectively represent him from that 
point on throughout the trial. This Court further specifi­
cally finds that Powell was present in open court during 
all stages of the proceedings that resulted in his trial, 
conviction and present imprisonment. This Court fur­
ther specifically finds that Powell wTas not deprived of 
any of his constitutional rights as guaranteed by the iawrs 
and the Constitution of the United States by the admis­
sion of certain exhibits (gun, bullets, blackjack, gloves 
and mask) which Powell claims were not used in or con­
nected with the offense for which he was convicted in 
the State court. As a matter of fact, these exhibits were 
taken from the room Powell and Hatt were in, and were 
taken incidental to and at the time of their arrest by the 
State officers. At least part of these articles were of a 
type used by Powell and Hatt in the robbery for which 
they were convicted. If there was any error in the ad­
mission of this evidence, it was mere error in a point of 
law and should have been reviewed on the appeal of the 
matter. I t was not such an error as is to be reviewed by



21

habeas corpus. See Carruthers v. Reed, 102 F. 2d 933, 
cert. den. 307 U.S. 643; Brown v. Allen, 344 U.S. 443; 
Adams v. United States, etc., 317 U.S. 269.

This Court further finds that Powell was not convicted 
[fol. 20] upon the uncorroborated testimony of his accom­
plice Hatt; as a matter of fact, there was considerable 
corroboration of Hatt’s testimony. Powell has failed in 
his attempt to show that Hatt’s testimony was perjured, 
and he has failed in his attempt to show if Hatt did wil­
fully give any false testimony, that the falsity of same 
was known by the representatives for the State of Ala­
bama. There is no basis in this case for applying the 
principle as set out in Napue v. Illinois, 360 U.S. 264.

As to Powell’s contention that he feared and failed to 
testify in his own behalf during his trial and conviction 
for robbery, because of mental and physical coercion by 
the authorities for the State of Alabama, this Court finds 
that Powell’s evidence in this respect completely fails. 
As his own attorney testified, his real reason for not 
taking the stand and testifying in his robbery case was 
his long criminal record. Powell’s evidence fails in his 
attempt to show that the State of Alabama, acting through 
its agents, suppressed vital evidence and testimony, and 
also fails in his effort to show that he was deprived of 
vital testimony because of certain intimidating threats 
made and directed toward one of his witnesses by the 
name of Mrs. Annie Lee Hamby, formerly Mrs. L. A. 
Phillips. As a matter of fact, this witness testified before 
this Court that the reason she did not testify in the case 
against Powell, for which he was convicted, is that Depu­
ty Sheriff Dinkin stated to her that Powell was going 
to get convicted and go to prison and that if the State 
authorities found out that she was financing Powell’s 
defense and/or living with Powell, her government check 
would probably be stopped, and that the children would 
possibly7 be taken away from her. This Court in face of 
the denial by Dinkin, a reputable law enforcement officer 
of many years, cannot believe and accept the testimony of 
Mrs. Hamby.

In view of the findings by this Court as above set out, 
many of which are undisputed, the only real problem in­
volved in this case, insofar as the law is concerned, is



22

that created by the fact that Powell was not represented 
by counsel at the time of his formal arraignment. The 
Alabama procedure, as set out in Title 15, § 318 of the 
1940 Code of Alabama, provides that when a person is 
indicted for a capital offense and is without counsel, the 
court must appoint counsel for him if he is unable to 
employ counsel. There is no question but that an accused 
person in a capital case has a constitutional right to be 
represented by competent counsel. The Supreme Court 
of the United States left no doubt as to the fact that the 
Fourteenth Amendment included such a right and pre­
cluded an individual being deprived of this right by a 
state. See Powell v. Alabama, 1932, 287 U.S. 45. Counsel 
[fol. 21] now representing this petitioner vigorously con­
tend that Powell v. Alabama, as above cited, stands for 
the principle that lack of counsel at arraignment, in and 
of itself, without any showing of prejudice, is sufficient 
to violate due process; counsel further vigorously insists 
that if such principle is not found to be true, then this 
petitioner was prejudiced by his lack of counsel upon his 
arraignment. The assignment of counsel to William K. 
Powell by the Circuit Court of Jefferson County, Ala­
bama—even though it was after his formal plea of not 
guilty was entered was on the same date that the formal 
plea was entered and during the same court appearance 
that formal plea was entered, and was at such a time and 
under such circumstances as to permit his court-appointed 
counsel to give him effective aid in the preparation and 
presentation of his defense. Indeed, effective aid was 
not only “permitted” but given and received. This Court 
does not understand that Powell v. Alabama, supra, stands 
for the proposition that lack of counsel at arraignment, 
in and of itself, without some showing of prejudice, neces­
sitates a holding that due process, within the meaning of 
the Fourteenth Amendment to the Constitution of the 
United States, was denied. As a matter of fact, that case 
by strong inference stands for the proposition that if 
counsel is assigned to an indigent defendant in a capital 
case at such a time and under such circumstances as to 
permit counsel to give the defendant effective aid in the 
preparation and trial of the ease, then compliance or non­



23

compliance with formality is not the determining factor. 
The real determining factor is whether or not the assign­
ment of counsel was under such circumstances and at such 
a time that effective aid could be and was available in both 
the preparation and the presentation of the available de­
fense. Here, counsel were appointed at a time when neces­
sary and before any rights of this petitioner were waived 
or lost. He was not prejudiced to any extent or degree 
by counsel being appointed shortly after his formal ar­
raignment, but during the same court appearance. Such 
delay could “possibly” have been prejudicial to him, but 
as the Supreme Court of the United States stated in 
Darcy v. Handy, 351 U.S. 454:

“Petitioner has been given ample opportunity to 
prove that he has been denied due process of law. 
While this Court stands ready to correct violations 
of constitutional rights, it also holds that ‘it is not 
asking too much that the burden of showing essential 
unfairness be sustained by him who claims such in­
justice and seeks to have the result set aside, and 
that it be sustained not as a matter of speculation 
but as a demonstrable reality.’ Adams v. United 
States ex rel. McCann, 317 U.S. 269, 281. See also, 
Buchalter v. New York, 319 U.S. 427, 431; Stroble v. 
California, 343 U.S. 181, 198. Justice Holmes, speak­
ing for a unanimous Court in Holt v. United States, 

[fol. 22] 218 U.S. 245, 251, cautioned that ‘If the mere 
opportunity for prejudice or corruption is to raise a 
presumption that they exist, it will be hard to main­
tain jury trial under the conditions of the present 
day.’

“We have examined petitioner’s allegations, the 
testimony and documentary evidence in support 
thereof, and his arguments. We conclude that the 
most that has been shown is that, in certain respects, 
opportunity for prejudice existed. From this we are 
asked to infer that petitioner was prejudiced.”

If this Court desired to speculate, it could very readily 
conclude that “opportunity” for prejudice was afforded in 
this case. For instance, Powell, before counsel was ap­



24

pointed, could have entered a plea of guilty instead of a 
plea of not guilty, and a motion to set such a plea of 
guilty aside could have been denied. Again, for instance, 
Powell, through his attorneys, could have attempted to 
enter the special plea of “not guilty by reason of insanity” 
and had such a motion denied. See Morrell v. State, 136 
Ala. 44, 34 So. 208, and Rohn v. State, 186 Ala. 5, 65 So. 
42. In either of those instances, the lack of counsel would 
have been prejudicial to Powell and would not have been 
a mere nonprejudicial lack of compliance with formality. 
To be more concise, this Court believes and holds that 
lack of compliance with formalities in court proceedings, 
which does not result in prejudice to the defendant, does 
not in and of itself result in a deprivation of due process 
within the meaning of the Fourteenth Amendment to the 
Constitution of the United States.

As to the point petitioner raises that concerns the com­
petency of his court-appointed attorneys (Bowron and 
Collins), this Court finds that each of these lawyers was 
a college graduate from an accredited law school, ea. 
admitted to the Alabama Bar and in good standing with 
that organization. While it is true that neither of these 
young lawyers had ever defended in a capital criminal 
case, it is also true that each of them was qualified to do 
so, and with those qualifications, they diligently applied 
themselves. Applying the principles of MacKenna v. 
Ellis, 1959, 5th Cir., 263 F. 2d 35, cert. den. 360 U.S. 935, 
and United States ex rel. Weber v. Ragen, 1949, 7 Cir., 
176 F. 2d 579, cert. den. 338 U.S. 809, it must be concluded 
that Powell’s evidence is insufficient as to this point.

As to petitioner’s final point, i.e., his constitutional 
rights were violated because of the trial judge’s failure 
to submit the question of venue to the petit jury, this 
Court finds that the Circuit Court of Jefferson County 
had jurisdiction to try, convict and sentence this peti­
tioner. See Title 15, § 94, 1940 Code of Alabama. Also 
Odell v. Hudspeth, 189 F. 2d 300, cert. den. 342 U.S. 873. 
[fol. 23] After a careful study and analysis of all the 
evidence presented in this case, both oral testimony and 
written exhibits, this Court is of the firm conviction that 
the proceedings leading up to and the trial resulting in



25

the conviction and confinement of William K. Powell by 
the State of Alabama on January 26, 1956, were fair and 
in accord with “due process”, and without his being de­
prived of any of his constitutional rights as a citizen as 
guaranteed by the laws and by the Constitution of the 
United States.

In accordance with the foregoing and for good cause 
shown, it is, therefore, the Order, J udgment and D egree 
of this Court that the petition for writ of habeas corpus, 
filed herein by William K. Powell, as authorized by 
§§ 2242 and 2254, Title 28, U.S.C.A., and by the mandate 
of the Supreme Court of the United States, be and the 
same is hereby denied.

Done, this the 4th day of March, 1960.

/s /  G. Donovan Johnson, Jr.
United States District Judge



26

[fol. 24] IN THE
SUPREME COURT OP ALABAMA

SPECIAL TERM 1960
WEDNESDAY—AUGUST 3, 1960 

# * # #
Okdeb of S ubm ission  on B riefs  on P etitio n  and A nsw er 

of th e  S tate of A labama T hereto— Aug. 3, 1960
6 Div. 604

(Title Omitted)

Come the parties by Attorneys, and submit this cause 
on briefs on the Petition for Leave to file a Petition for 
Writ of Error Coram Nobis and Answer of the State 
of Alabama thereto, for decision.

[Livingston, C. J L a w s o n , Stdkely and Merrill, JJ., 
Sitting]



27

[fol. 25] IN THE
SUPREME COURT OF THE STATE OF ALABAMA, 

JUDICIAL DEPARTMENT
SPECIAL TERM 1960

6 Div. 604
Ex parte C harles Clarence H amilton 

I n  re C harles Clarence H amilton

v.
S tate oe A labama

Petition for Leave to File Writ of Error Coram Nobis 

Op in io n — Aug. 15, 1960

L awson, J u stice .

Charles Clarence Hamilton was convicted in the Circuit 
Court of Jefferson County of the offense of breaking and 
entering an inhabited dwelling in the nighttime with in­
tent to ravish.—§ 85, Title 14, Code 1940. We affirmed.— 
[fol. 26] Hamilton v. State (Ala.), 116 So. 2d 906. Writ 
of certiorari was denied by the Supreme Court of the 
United States on June 27, 1960.—Hamilton v. Alabama, 
80 S. Ct. 1638, 4 L. Ed. 2d 1737.

Hamilton has filed in this court a petition for leave to 
file an application for writ of error coram nobis in the 
Circuit Court of Jefferson County. Such is the proper 
procedure in view of the fact that the judgment of the 
Circuit Court of Jefferson County was affirmed here.— 
Taylor v. Alabama, 335 U. S. 252, 68 S. Ct, 1415, 92 L. 
Ed. 1935; Ex parte Williams, 268 Ala, 535, 108 So. 2d 
454, and eases cited.

In the petition presently before us, Hamilton asserts 
that the judgment under which he is being held is void in 
that his rights under “the laws and Constitution of the 
State of Alabama and the Fourteenth Amendment to the 
Constitution of the United States of America” were vio­
lated in that he was not represented by counsel at the 
time he was arraigned and pleaded not guilty to the in­
dictment upon which he was tried and convicted.



28

The petition, including the exhibits, the affidavit in sup­
port of the petition, the State’s answer and affidavits sup­
porting it show these circumstances:

Hamilton was first indicted on November 9, 1956. The 
indictment contained one count which charged burglary 
of an inhabited dwelling in the nighttime with intent to 
steal. He was arraigned on that indictment on January 
4, 1957. He pleaded not guilty. He was represented by 
court-appointed counsel at arraignment when the plea 
was entered.

A second indictment against Hamilton was returned 
on February 12, 1957. It contained two counts. One 
count charged burglary of an inhabited dwelling in the 
[fol. 27] nighttime with intent to steal. The other count 
charged burglary of an inhabited dwelling in the night­
time with intent to ravish.

Both indictments related to the same incident, that is, 
to the breaking and entering of the inhabited dwelling of 
one Jacob C. Milko during the early hours of October 13, 
1956.

The lawyer who had been appointed to defend Hamil­
ton against the first indictment was advised by the State’s 
prosecutor that the second indictment had been returned 
and that Hamilton would be “re-arraigned” and the case 
set for trial.

Hamilton was arraigned on the second indictment on 
March 1, 1957. He pleaded not guilty. Neither the law­
yer who had been appointed to defend him against the 
first indictment nor any other lawyer appeared on his 
behalf at arraignment. The court did not appoint a law­
yer to defend him against the second indictment until 
March 4, 1957, when the same lawyer was appointed who 
had been appointed to defend him against the first indict­
ment.

Hamilton was brought to trial on the second indict­
ment on April 23, 1957, when a jury found him guilty 
under the second count of the indictment and inflicted the 
death penalty. The first indictment was “nolle pressed” 
on April 24, 1957.

We hold that it is made to appear in this proceeding 
that Hamilton was not represented by counsel at the 
time he was arraigned on the indictment on which he was



29

subsequently tried and convicted. We are not here con­
trolled by the minute and judgment entries, as was the 
situation on appeal from the judgment of conviction.— 
Hamilton v. State (Ala.), 116 So. 2d 906.

Section 318, Title 15, Code 1940, as amended, provides 
in pertinent parts as follows: “When any person indicted 
for a capital offense is without counsel and the trial 
judge, after due investigation, is satisfied that the defend- 
[fol. 28] ant is unable to employ counsel, the court must 
appoint counsel for him not exceeding two, who must be 
allowed access to him, if confined, at all reasonable hours, 
. . . ” We think this section places upon the trial court 
the responsibility of seeing that an accused indicted for 
a capital offense has a lawyer before he is arraigned and 
called upon to plead to the indictment. We have found 
no Alabama ease expressly so holding, but this has been 
the almost uniform practice of the circuit courts of this 
state for many years and the very purpose of the statute 
seems to dictate such action.

In Powell v. United States, 287 U. S. 45, 53 S. Ct. 55, 
77 L. Ed. 158, the Supreme Court of the United States 
held that in a capital case, where the defendant is unable 
to employ counsel, and is incapable of adequately making 
his own defense because of ignorance, feeble-mindedness, 
illiteracy or the like, it is the duty of the court, whether 
requested or not, to assign counsel for him as a necessary 
requisite of due process of law; and that such duty is not 
discharged by an assignment at such a time or under 
such circumstances as to preclude the giving of effective 
aid in the preparation and trial of the case. See Reece v. 
Georgia, 350 U. S. 85, 76 S. Ct. 167, 100 L. Ed. 77; Tomp­
kins v. Missouri, 323 U. S. 485, 65 S. Ct. 370, 89 L. Ed. 
407.

The right to counsel is not a right confined to repre­
sentation during a trial on the merits.—Moore v. Michi­
gan, 355 U. S. 155, 78 S. Ct. 191, 2 L. Ed. 2d 167.

Hamilton should have been represented by counsel at 
the time of his arraignment. We construe the petition and 
the papers filed in support and in opposition thereof to 
show, as we have indicated above, that he was not so 
represented.



30

[fol. 29] But does that showing, standing alone, afford 
prima facie just ground for us to authorize the filing in 
the lower court of the application for writ of error eoram 
nobis? See Johnson v. Williams, 244 Ala, 391, 13 So. 2d 
683, where we defined the standards to guide us in deter­
mining whether a petition for application to file a writ of 
error coram nobis in the trial court should be granted 
here. See also Ex parte Taylor, 335 U. S. 252, 68 S. Ct. 
1415, 92 L. Ed. 1935.

We think not and answer the question in the negative.
In a number of Federal Cases where the defendants 

were entitled to the benefit of counsel, it has been held 
that there was no abridgment of the right to counsel 
where the defendant was arraigned before counsel wTas 
appointed to represent him and the defendant pleaded not 
guilty. Even where the defendant pleaded guilty on 
arraignment the failure to appoint counsel has been said 
not to have been prejudicial where counsel was appointed 
immediately after arraignment and full opportunity was 
given to withdraw the plea or to take whatever steps were 
necessary or desirable without regard to what previously 
transpired.—Counsel v. Cremmer, 177 F. 2d 22, and cases 
cited; Young v. United States, 228 F. 2d 693.

The same rule seems to apply to those states where 
provision is made for appointment of counsel to represent 
defendants charged with non-capital offenses.

In Canizio v. New York, 327 U. S. 82, 66 S. Ct. 452, 90 
L. Ed. 545, the Supreme Court of the United States 
treated the record before it as showing that Canizio was 
without counsel when he was arraigned and pleaded 
guilty in a New York court, and that the trial court failed 
to inform him of his right to counsel, but held that this 
defect was cured by his being represented by counsel 
[fol. 30] before and at sentence. It wTas observed by the 
court:

“The attorney could have moved to withdraw the 
plea of guilty and the County Court of Kings County 
would have had the power to set aside the plea and 
let the petitioner stand trial . . . Petitioner’s counsel 
probably thought it undesirable to do so, because 
this move might have jeopardized his chances for



31

securing a low sentence . . .  At any rate, whatever 
the reason petitioner’s counsel did not move to with­
draw the guilty plea. All of this demonstrated to the 
satisfaction of the court below even though petitioner 
may not have had counsel at the beginning, he had 
counsel in ample time to take advantage of every 
defense which would have been available to him origi­
nally. We think the record shows that petitioner 
actually had the benefit of counsel. When that coun­
sel took over petitioner’s defense, he could have raised 
the question of a defect in the earlier part of the 
proceedings. Failing to do so when the statute af­
forded him the opportunity, we cannot say that the 
court denied petitioner the right to have a" trial with 
the benefit of counsel.” (327 TJ. S., 85-86)

See Gayes v. New York, 332 U. S. 145, 67 S. Ct. 1711, 91 
L. Ed. 1962; People v. Dolac, 160 N. Y. S. 2d 911; Chand­
ler v. State, 226 Ind. 648, 83 N. E. 2d 189; State v. Swen­
son, 242 Minn. 570, 65 N. W. 2d 657. Also see Quicksall v. 
Michigan, 339 U. S. 660, 70 S. Ct, 910, 94 L. Ed. 1188.

The rule of the cases which we have cited and quoted 
from above seems to apply to state capital cases as well, 
[fol. 31] In the opinion in People v. Moore, 405 111. 220, 
89 N. E. 2d 731, decided by the Supreme Court of Illinois 
in 1950, it is shown that Moore was indicted for murder. 
The opinion does not show that murder was a capital 
offense in Illinois, but the law of that state so provided. 
Moore was convicted of murder and was sentenced to serve 
sixty years in prison. He appealed to the Supreme Court 
of Illinois, claiming that “his rights under the statute and 
under § I of the fourteenth amendment to the Federal con­
stitution and Sections 2 and 9 of Article II of the Illinois 
constitution, Smith-Hurd Stats., were violated and because 
the court did not inquire as to whether he was able to 
employ counsel and did not appoint counsel to represent 
him prior to and during his arraignment.” (Emphasis 
supplied) The opinion does not show which provision 
of law the court had reference to in simply using the 
words “the statute.” However, it seems reasonable to 
assume that the court was referring to those provisions 
of the law of Illinois which required the appointment of



32

counsel to represent defendants charged with capital 
offenses. In affirming the judgment of conviction, the 
Illinois Supreme Court said:

“The indictment consisted of two counts, each 
charging murder. Plaintiff in error was arraigned 
May 4, 1934, and was furnished with a copy of the 
indictment, together with a list of witnesses and 
jurors, at which time he pleaded not guilty. Three 
days later he appeared in court with counsel and on 
his motion the cause was continued. The record 
shows he was represented by counsel at each stage 
of the proceedings except at his arraignment when 
he pleaded not guilty. He was tried by the court 
after having waived a trial by jury.

[fol. 32] “It will be noted that when plaintiff in error 
was arraigned he pleaded not guilty, so he was not 
prejudiced in any way if he did not have counsel at 
the time. In every other step of the proceedings he 
was shown to be represented by counsel. We find 
no error in the record before us and the judgment is 
accordingly affirmed.”

The Supreme Court of the United States declined to 
review the opinion and judgment of the Supreme Court of 
Illinois— Moore v. Illinois, 339 U. S. 924, 70 S. Ct. 614, 
94 L. Ed. 1346.

It appears from the opinion prepared by Judge Bar shay 
for the Kings County Court of New York in the case of 
People v. Matera, 132 N. Y. S. 2d 117, that Matera was 
convicted on June 18, 1931, of the crime of murder in the 
first degree and was sentenced to death. On his applica­
tion for executive clemency, the death sentence was com­
muted to life imprisonment by Governor Franklin D. 
Koosevelt. Many years later Matera filed his application 
in the nature of a writ of error coram nobis to vacate 
and set aside the judgment of conviction. Among the 
grounds upon which Matera relied was the contention 
“. . . that on his arraignment on this indictment he was 
neither represented by counsel nor was he advised of his 
right of counsel; that he pleaded ‘Not Guilty’, . . .” 
Matera’s motion or application for writ of error coram



33

nobis was denied. Such action of the court was based in 
part on the holding of the Supreme Court of the United 
States in Canizio v. New York, supra.

The ease in point is that of State v. Sullivan, decided 
by the United States Circuit Court of Appeals for the 
10th Circuit in 1955.—227 F. 2d 511. The Supreme Court 
of the United States declined to review the opinion and 
judgment of the Circuit Court.—350 U. S. 973, 76 S. Ct. 
449, 100 L. Ed. 844.
[fol. 33] Verne A. Braasch and Melvin A. Sullivan were 
tried in a Utah state court upon the charge of murder. 
They were found guilty and sentenced to death. The 
judgment was affirmed—State v. Braasch, 119 Utah 450, 
229 P. 2d 389; and certiorari was denied by the Supreme 
Court of the United States, 342 U. S. 910,'72 S. Ct. 304, 
96 L. Ed. 681. Thereafter, they filed in the Supreme 
Court of Utah a pleading in which they sought a writ of 
habeas corpus. The writ was disallowed. On the next 
day Braasch and Sullivan instituted in a United States 
District Court in the State of Utah a habeas corpus pro­
ceeding wherein they alleged that their detention for 
execution was illegal and void because their rights under 
the Constitution of the United States had been violated. 
An amended complaint was subsequently filed. A motion 
was made to dismiss the habeas corpus proceedings for 
the reason that the amended complaint contained grounds 
of attack upon the judgment of the state court which 
had not been submitted to the state courts of Utah. The 
United States District Court after a hearing determined 
that certain grounds of the attack contained in the amended 
complaint had not been submitted to the state courts and 
that the submission of such issues to the state courts was 
an essential preliminary to the right to resort to habeas 
corpus in the United States court. Instead of dismissing 
the habeas corpus proceeding, however, the United States 
District Court retained jurisdiction thereof and gave 
Braasch and Sulivan time within which to institute in 
the state court an appropriate proceeding for the deter­
mination of such issues.—Ex parte Sullivan, 107 P. Supp. 
514. A proceeding of habeas corpus was then filed in the 
Supreme Court of Utah, which was denied.—Ex parte



34

Sullivan, 123 Utah. 28, 253 P. 2d 378. Certiorari was 
[fol. 34] denied by the Supreme Court of the United 
States.—Braasch v. Utah, 346 U. S. 861, 74 S. Ct. 75, 98 
L. Ed. 373.

Thereafter the United States District Court, having 
retained jurisdiction of the habeas corpus proceedings, 
granted the writ of habeas corpus.—In the Matter of the 
Application of Sullivan and Braasch, 126 F. Supp. 564. 
The United States District Court predicated its action in 
granting the writ upon multiple grounds, one of which 
was a failure to furnish the petitioners counsel at the 
time of their arraignment upon the murder charge.

The State of Utah appealed to the United States Court 
of Appeals for the 10th Circuit. In an opinion by Judge 
Bratton reversing the District Court, it was said in part 
as follows:

“The trial court rested in part the granting of its 
writ upon the failure to furnish petitioners counsel 
at the time of their arraignment upon the criminal 
charge. Petitioners did not have counsel at the time 
they were arraigned and entered their pleas of not 
guilty in the district court. But immediately there­
after, separate counsel were appointed for them, re­
spectively. At no time after the appointment of 
counsel was any effort made to withdraw such pleas 
in order to attack the charge, or for any other pur­
pose. And there is a complete failure of any showing 
that at any juncture of the criminal case were the 
petitioners denied any substantive or procedural right 
which might have been available to them except for 
such pleas. Petitioners did not suffer any proscrip­
tion or disadvantage at any point in the criminal case 

[fol. 35] arising out of their pleas of not guilty, entered 
without the aid of counsel. And, while it is the gen­
eral rule frequently reiterated that an accused is 
entitled to the benefit of counsel at every step of the 
proceedings, where one enters a plea of not guilty and 
is immediately thereafter furnished counsel for the 
preparation for trial, for the trial itself, and for the 
post-trial proceedings, the sentence imposed is not 
void for violating due process under the Fourteenth



35

Amendment or for impingement of fundamental rights. 
Council v. Clemmer, supra [177 F. 2d 22].” (227
F. 2d 511, 514)

As we have indicated, Hamilton seeks our authorization 
to file an application for writ of error coram nobis in the 
trial court by simply showing that he was without counsel 
at time of arraignment. There is no showing or effort to 
show that Hamilton was disadvantaged in any way by the 
absence of counsel when he interposed his plea of not 
guilty. Counsel was appointed for him three days after 
arraignment whose competence is not questioned and who 
asserts in an affidavit filed in this proceeding that “he 
would not have entered any different plea than the plea 
that was entered by the defendant on March 1, 1957.” 
There is no suggestion that the not guilty plea interposed 
at the arraignment in absence of counsel prevented the 
filing of any other plea or motion.

In our opinion written on the appeal from the judg­
ment of conviction (Hamilton v. State (Ala.), 116 So. 2d 
906), we did not intend to convey the impression that we 
entertained the view that absence of counsel at the time of 
[fol. 36] arraignment in and of itself would vitiate the 
judgment of conviction. We simply did not take issue 
with the assertions made by counsel for Hamilton in that 
regard because the minute and judgment entries showed 
that Hamilton wTas represented by counsel at arraignment.

We are, of course, not unmindful of the severity of 
the punishment in this case, but we cannot say that a 
prima facie case for the filing of a petition for writ of 
error coram nobis has been made. We must, therefore, 
deny the petition.

P etitio n  D en ie d .

Livingston, C. J,, Stakely and Merrill, JJ., concur.



38

[fol. 37] IN THE
SUPREME COURT OF ALABAMA 

SPECIAL TERM 1960

[MONDAY—AUGUST 15th, 1960]
*  #  #  #

Order D en y in g  P etitio n  eor L eave to F ile  a P etitio n  
eor W rit  oe E rror C oram N obis— August 15, 1960

(Title Omitted)

Gomes the Petitioner, Charles Clarence Hamilton, by 
Attorneys, and The State of Alabama by its Attorney 
General, and the Petition for Leave to File a Petition for 
Writ of Error Coram Nobis to Jefferson Circuit Court 
and the Answer of The State of Alabama thereto, being 
submitted on briefs and duly examined and understood 
by the Court,

I t I s C onsidered and Ordered that the Petition be and 
is hereby denied at the cost of the Petitioner, for which 
costs let execution issue accordingly.

[Opinion by Lawson, J.]

[Livingston, C. JS t ak e l y ,  and Merrill, JJ., concur.]



37
[fol. 38] (File Endorsement Omitted)

IN THE SUPREME COURT OF ALABAMA 
SIXTH DIVISION—NO. 604

(Title Omitted)
P etitio n  fob S tay of E xecution— Filed Aug. 17, 1960
Comes now the appellant in the above-styled cause, by 

his attorneys, and petitions the Honorable Court to sus­
pend execution of the sentence heretofore rendered in 
this case, and to stay execution of the Death Sentence 
heretofore set for August 19, 1960, and as grounds for 
said petition appellant shows the Honorable Court the 
following:—

1. That appellant was tried for and convicted of the 
crime of First Degree Burglary with intent to ravish by 
the Jefferson County, Alabama, Circuit Court on to-wit: 
the 24th day of April, 1957, and sentenced to be executed 
in the electric chair.

2. That on appeal, this Plonorable Court affirmed the 
Judgment of the Circuit Court and on to-wit: the 21st 
day of January, 1960, denied his petition for rehearing.

3. Petitioner’s application to the United States Su­
preme Court for Certiorari was denied on June 28, 1960, 
and application for Writ of Error Coram Nobis to the 
Supreme Court of the State of Alabama, was denied on 
to-wit: the 15th day of August, 1960.

4. Petitioner has been granted several stays of execu­
tion during the several stages of this matter, the last such 
stay to August 19, 1960, was granted by Honorable John 
Patterson, Governor of Alabama.
[fol. 39] 5. Petitioner needs a further Stay of Execu­
tion in order that he might seek a review of this Hon­
orable Court’s decision by the United States Supreme 
Court by certiorari or appeal.

W herefobe , petitioner prays that this Honorable Court 
will suspend the execution of sentence in this cause set 
for August 19, 1960, for a reasonable time, in order that 
he might pursue his remedy in the Federal Courts.

/ s /  Orzell Billingsley, Jr.
Peter A. Hall
Attorneys for Petitioner-Appellant

Duly Sworn to by Orzell Billingsley, Jr.
Jurat Omitted in Printing



38

[fol. 40] IN THE
SUPREME COURT OF ALABAMA 

SPECIAL TERM 1960

WEDNESDAY—AUGUST 17, 1960

O rder S taying D ate of E xecution  of A ugust 19, 1960, 
P ending  A pplication  by P etitio n er  to t h e  S uprem e  
C ourt of t h e  U nited  S tates for a W rit of Certiorari 
and R esetting  D ate of E xecution  for F riday, N ovem­
ber 18, 1960—Aug. 17, 1960

(Title Omitted)

W hereas, on the 27th day of July, 1960, the Petitioner, 
Charles Clarence Hamilton, filed a Petition for Leave to 
File a Petition for Writ of Error Coram Nobis to Jeffer­
son Circuit Court in the Supreme Court of Alabama, and 
said petition after being duly examined, understood and 
considered was denied by the Supreme Court of Alabama 
on August 15, 1960.

W hereas, the said Petitioner, Charles Clarence Hamil­
ton, has tiffs day [August 17, 1960] filed a petition in this 
Court to stay the execution of the death sentence set for 
Friday, August 19, 1960, by reprieve of Governor John 
M. Patterson issued July 28, 1960, pending application 
[fol. 41] by the Petitioner, Charles Clarence Hamilton to 
the Supreme Court of the United States for a Writ of 
Certiorari to review the judgment and order of the Su­
preme Court of Alabama of August 15, 1960.

Now, T herefore , I t I s H ereby Ordered by the Supreme 
Court of Alabama, that the date of execution of the death 
sentence set for Friday, August 19, 1960, by reprieve of 
Governor John M. Patterson issued July 28, 1960, be and 
is hereby stayed, and that the date of execution of the 
death sentence be and is hereby reset for Friday, Novem­
ber 18, 1960, pending application by the Petitioner, 
Charles Clarence Hamilton, to the Supreme Court of the 
United States for a Writ of Certiorari to review the



39

judgment and order of the Supreme Court of Alabama 
of August 15, 1960.

[Livingston, C. JLaws on ,  Stakely, 
and Merrill, JJ., concur.]

Clerk’s Certificate to foregoing 
Transcript (Omitted in Printing)



[fol. 42] SUPREME COURT OF THE 
UNITED STATES

No. 533 Misc.,October Term, 1960

C harles Clarence H am ilton , petitio n er ,

40

vs.

A labama

Order Granting  M otion for L eave to P roceed in  F orma 
P auperis and Granting  P etitio n  for W rit of 

Certiorari— January 9, 1961

O n  P etitio n  for W rit of Certiorari to the Supreme 
Court of the State of Alabama.

On  C onsideration of the motion for leave to proceed 
herein in forma pauperis and of the petition for writ of 
certiorari, it is ordered by this Court that the motion to 
proceed in forma pauperis be, and the same is hereby, 
granted; and that the petition for writ of certiorari be, 
and the same is hereby, granted. The case is transferred 
to the appellate docket as No. 640.

And it is further ordered that the duly certified copy 
of the transcript of the proceedings below which accom­
panied the petition shall be treated as though filed in 
response to such writ.

January 9, 1961

☆  U.  S .  GOVERNMENT PRINTING OFFICE; 1 9 6 1 5 8 4 7 6 1 9 3 5



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